Has Obama Breached His Constitutional Power in Libya?

[tekisui]

Source: Real Clear Politics

In late September 1983, one month before the bombing of the U.S. Marine barracks in Beirut, the Reagan administration continued to insist that the War Powers Act did not apply to the U.S. military presence in Lebanon.

''The administration wants our stamp of approval,'' said a young Sen. Joseph Biden, ''but it is unwilling to commit itself to our laws.''

About a quarter-century later, Sen. Barack Obama told The Boston Globe, "The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

Today, Obama and Biden lead an administration engaged in a military conflict without legislative consent. The 1973 War Powers Resolution compels presidents to secure congressional approval within 60 days of U.S. military forces' "imminent involvement" or "introduction" into "hostilities." U.S. operations in Libya violated that deadline on Friday.

more: http://www.realclearpolitics.com/articles/2011/05/23/has_obama_breached_his_constitutional_power_in_libya_109952.html

[TimLighter]

1. No he's not. The President notified Congress

on the 60th day, and explained that there is NO WAR dammit.

“Since April 4,” the president wrote, “U.S. participation has consisted of: (1) non-kinetic support to the NATO-led operation, including intelligence, logistical support, and search and rescue assistance; (2) aircraft that have assisted in the suppression and destruction of air defenses in support of the no-fly zone; and (3) since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO-led coalition's efforts.”

Why is it so hard to understand non-kinetic support to the NATO-led operation?

[tekisui]

2. lol. He just avoded the WPA, after invoking by claiming it isn't a war.

I am sorry, but that is circular logic and absolute bullshit. Labeling acts of war as anything else does not change that he needs authorization under the WPA.

You also highlighted only one part of our role. Number 2 and 3 are even more overt acts of war.

[TheWraith]

3. You don't seem to understand the War Powers Act.

The entire principle is that it allows military action, provided that to continue past 60 days congressional authorization is needed, else involvement has to end within 30 days after that.

This is not continuing past 60 days.

[tekisui]

4. I understand. And, as I said, if Congress doesn't act within

the next 30 days, which they don't seem eager to, the constitutionality of the operation is no longer valid.

[Igel]

6. One better.

Authorization has to be secured within 60 days. If not, then the action has to be stopped within 30.

No authorization was secured within 60 days.

[Igel]

5. Let me get this straight.

If a US jet drops a bomb and destroys a surface-to-air missile installation today, that makes it a war, but if a UAV instead were to a bomb and destroys the same installation it would be "non-kinetic"?

I'm amazed that the hair that's split can be seen with a scanning electron microscope.

Now, let's actually see what Obama said.

Since April 4 the following have been taking place:

-- non-kinetic support to the NATO-led operation
-- aircraft that have assisted in the suppression and destruction of air defenses

Since April 23 we have *added* the following:

-- strikes by unmanned aerial vehicles

Presumably since the non-kinetic support has continued (the first point) from April 4 right through to the present the aircraft have also continued their assistance.

In other words, two of the three things Obama says are "kinetic" in some way: bombing or blowing things up. Yet we only read his first sentence because then we can say that we're not engaged in "hostilities," which are redefined to require a "war".

This is sillier than the claim that since he encourages a resolution showing support for what he and the UN are doing he's to be considered to have asked specifically for authorization and approval under the WPA--even though in encouraging this resolution he actually uses the word "authorization" but only in reference to the UN. (In the same way, elsewhere the permission granted by the UN was billed a "mandate"--an order.)

[sudopod]

12. "precision strikes by unmanned aerial vehicles"

that "non-kinetic" (whatever that means) was not exclusive, apparently.

[ReturnoftheDjedi]

7. Did Clinton breach his authority in Bosnia??

Congress never declared War.

[tekisui]

8. Probably. How long did the operation in Bosnia last?

Remember, too, Obama told us the acts in Libya would last "weeks, not months". We are now entering the third month and look no closer to getting out.

[ReturnoftheDjedi]

10. He said the US lead role would last weeks, not our NATO involvement

[tekisui]

11. Link, so that we can further split hairs?

[PurityOfEssence]

15. Yes.

There is a flimsy bit of cover by saying that NATO considered the hostilities there to be tantamount to being attacked--imminent danger being enough of a threat to be considered justification of self-defense--and thus triggering the NATO self-defense doctrine, but that's a crock of shit.

(Just to clarify: NATO is a mutual self defense pact, which calls upon all members to respond militarily if a member nation is attacked. That's the justification for various NATO countries to be involved in Afghanistan: the United States was attacked in New York in 2001, and they use this as justificattion to go to war against those allegedly responsible.)

The UN Charter does NOT have a triggering mechanism like this: the UN Participation Act (US law) requires Congress to authorize via a vote of both houses ANY deployment of forces pursuant to a call-up.

Clinton fucked us, and Obama's driving the stake in deeper; it's sad to think that George W. Bush was more beholden to the War Powers Resolution than either of them, but he was.

This is a disgusting episode in our history, and it will be reviled as time goes on.

[bhikkhu]

16. ...yes, and for the same reasons

our congress has been too habitually crippled up in partisan squabbles over every issue, whether it has anything to do with domestic politics or not, to act as any kind of responsible or effective actor in the world.

Realistically, Obama and everyone else knows what would happen if we had to rely on congress - nothing.

[craigmatic]

9. It doesn't really matter in terms of what we can do about it until they indict bush and cheney.

[Vattel]

13. It is clear to anyone who can read that he has violated the WPA.

The constitutional issue is more complicated, but he has certainly acted in a way that the Founders would have regarded as unconstitutional.

And it is comical to see the apologists try to reconcile his actions with his remark that "the president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." My favorite attempt at reconciliation is the suggestion that because we are acting in concert with other members of NATO in Libya, Obama did not unilaterally authorize a military attack there. Only a true Obama apologist could come up with that one.

[PurityOfEssence]

14. Yes: he violated the UN Participation Act of 1945 and the War Powers Resolution of 1973

In short, one may ONLY send forces in response to a UN Article 42 call-up if a special agreement has been made about the availability of forces for a specific action and it has been authorized by a vote of both Houses of Congress, and by the restrictions of the War Powers Resolution, a President may ONLY send armed forces into "hostilities" or where they may be imminent under three conditions: a Declaration of War, a Congressional Authorization or if we're attacked.

It's flagrant, arrogant, ludicrously illegal, and he's getting away with it for the moment.