A War Fit for a King
Obama's "kinetic military action" in Libya violates the Constitution
Remember back in your high school civics class, when you were taught about the constitutional division of authority in matters of war? When you learned that the president has all the powers of an emperor, and Congress has all the powers of a potted plant?
Neither do I. But the people occupying high office in Washington went to a different school. They have done their best to prove that when it comes to using military force, neither the law nor the Constitution means a thing.
More than two months ago, President Obama abruptly took the nation to war against Libya, a country that had not attacked us or threatened us. His ostensible purpose was to protect Libyan civilians from the government of Moammar Gadhafi, which is at war with insurgents.
Obama acted after getting authorization from the United Nations, which is not mentioned in the Constitution, rather than Congress, which is. Specifically, the framers stipulated that Congress has the power to "declare war," giving it the chief responsibility except when the president needed to act quickly to repel an attack.
But in the ensuing centuries, presidents of both parties have often trampled over their original limits, and Congress has usually let them. This has not gone over well with all lawmakers—like the senator who said in 2007 that the president has no right to go to war on his own, barring an actual or potential attack.
His name was Barack Obama. But President Obama has thoroughly repudiated the naive and simplistic notions voiced by Sen. Obama. In some ways, he has also been even more aggressive than his predecessors in doing whatever he pleases.
A rare attempt by Congress to reassert its authority came in 1973, when it passed a law called the War Powers Resolution. It places mild restrictions on the president, requiring him to report to Congress when he puts American forces "into hostilities." If Congress doesn't give approval of the operation within 60 days, the law says, he has to bring it to a swift conclusion.
But the 60th day came and went last month without the slightest recognition by Obama. Meanwhile, the administration claims it is abiding by the law while declining to bother explaining how on earth this can be.
One possible excuse is that we are not at war in Libya. Defense Secretary Robert Gates insists the term "war" is inappropriate for what he calls a "limited kinetic action." He can call it a Hawaiian luau if he wants, but the fact remains that the U.S. is apparently still flying missions over Libya and hitting military targets.
The War Powers Resolution does not contain a giant, honking exception for such activities. In fact, the authors seemed to have Libya in mind when they said the rules apply anytime American forces venture "into the territory, airspace, or waters of a foreign nation, while equipped for combat."
It doesn't matter if our pilots are up there firing missiles or looking for topless beaches: If they are in combat aircraft over another country, the law applies.
But Obama apparently used his copy of the War Powers Resolution to housebreak the first dog. Rather than insult our intelligence with hair-splitting arguments about why the law exempts this undertaking, he has chosen to simply pay it no mind.
Harvard law professor Jack Goldsmith told The New York Times that "this appears to be the first time that any president has violated the War Powers Resolution's requirement either to terminate the use of armed forces within 60 days after the initiation of hostilities or get Congress' support."
The administration has brushed off questions about its compliance with the law. But the Times says officials have said Obama "may order forces into limited military engagements on his own if he decides it is in the national interest, and that the NATO-led campaign in Libya is such a conflict."
Really? Can someone direct me to the provision of the Constitution that blesses "limited military engagements" authorized by the White House in conjunction with NATO? Or the section in the War Powers Resolution that says, "Invalid in cases when the president claims a national interest"?
The Constitution says the president "shall take care that the laws be faithfully executed." But when Obama executed this law, he did it with a firing squad.
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