Doesn't anyone care that Obama is bombing Libya without Congressional authorization?

Bye bye, Constitution. It’s been real.

The very first article of the United States Constitution enumerates the powers of Congress. Among these is the power

“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water…”

Nowhere in the Constitution is the president given the authority to make war unilaterally. It is true that the president is the Commander-in-Chief of the armed forces, but that clause comes with an important qualifier:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…”

As specified by Article I, calling the military into service falls under the expressed powers granted to Congress. Several presidents have ignored the Constitution in this regard, with Barack Obama becoming just the latest example with his initiation of military action against Libya (not to mention his predator drone strikes in Pakistan and Yemen, but we’ll leave this aside for the time being.) For his part, George W. Bush waged war in Afghanistan and Iraq, but in each case had congressional authorization to carry out military action, however vague that permission was in the case of Iraq. Indeed, many gutless Democrats who in 2002 gave Bush wide-ranging discretion to handle Iraq’s WMD compliance/noncompliance as he saw fit, later claimed that they did not intend to give him the authority to order an invasion.

Establishment liberals can always be counted on to support a war if the justification for it is rife with enough fear-mongering or is couched in lofty rhetoric about human rights. Time magazine’s Joe Klein, for example, never tires of suckling at the teat of executive power. And when a president, whether Bush or Obama or whoever, says we need to send warships to wherever and fire up the fighter jets to bomb another race of brown people, the worst Klein can say about such an operation is that he’s “skeptical” about the mission’s potential for success, despite the occurrence of some “amazing diplomacy.”

Which brings me to my next point: after a unilateral decision has been made by a US president to bomb somewhere, the media has the awful tendency of examining the action’s efficacy, and not its legality or its morality for that matter. Talking heads on television delve into whether the war is worth the cost in terms of blood and treasure. Even decades later wars are discussed in such terms, as the case of Vietnam illustrates. The problem with that war, so Establishment wisdom goes, that the war simply was not worth the American lives and money. Never mind the fact that two million East Asians were mercilessly subjected to a holocaust of indiscriminate bombing by three successive presidential administrations, or the fact that the US essentially had to wage war on the South Vietnamese people so it could “defend” them from their own National Liberation Front. No, the problem with Vietnam was that policymakers didn’t have the foresight to know that half a million US soldiers and all the munitions tonnage the US could drop would not be sufficient for victory. Meanwhile the legality and altruistic intentions of US foreign policy are always taken for granted. And if someone like a Kucinich or a Paul gets out of line—as one surely will—pundits from the Right and the Left will be happy to impugn his patriotism and accusing him of not “supporting the troops.”

But what about the War Powers Resolution of 1973? That gives the president the authority to deploy the military as he sees fit, so long as he notifies Congress within 48 hours, and doesn’t keep forces committed for more than 60 days, 90 days counting the troop drawdown process. I’m no ConLaw expert, but I fail to see how Congress can just abdicate its constitutional war-making responsibilities. Every person who’s taken AP Government or History is familiar with the 1803 case Marbury v. Madison, in which the Marshall Court struck down a provision in the 1789 Judiciary Act that expanded the Supreme Court’s original jurisdiction beyond the scope of its constitutional authority. In providing a precedent for the vital concept of judicial review, Marshall wrote,

“Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.”

Congress’ war-making powers have been usurped by the executive with such frequency that most people seem desensitized to the phenomenon. Indeed, some Obama apologists on Huffington Post (scroll down to the comments for attacks on Kucinich from Obama worshipers) and elsewhere have cited as evidence of the Libya operation’s legitimacy, United Nations Security Council Resolution 1973, passed 10-0 (with five abstentions), that authorized the implementation of a no-fly zone if Moammar Gaddafi did not agree to cease military operations against the rebels. No doubt the UNSC resolution has the force of international law, but the question here isn’t whether Obama’s/Sarkozy’s/Cameron’s war on Libya is legal under international law, but whether Obama’s decision to enter into the agreement and carry out its provisions is allowable under US law. Be advised that this has nothing to do with international law trumping domestic law, since international law is often a product of decisions made with domestic considerations, such as public opinion, and checks and balances in mind. Before ordering his ambassador, Susan Rice, to vote “yes” at the UN, and indeed, before he decided to commit American military resources to a bombing campaign in Libya, he could have, and should have, sought authorization from Congress. Besides, there was nothing preventing the Obama administration from approving UNSC Resolution 1973, while telling its allies that for the US to take part in instituting a no-fly zone, that Congress would first have to give its blessing.

Anyone who thinks that the Framers intended for the President to have sole discretion to engage the military in hostilities with no authorization is free to attempt to find evidence for this in Madison’s Notes on the Debates of the Federal Convention, the Federalist Papers, or other correspondence from the Framers. The truth, however, is that here the preponderance of evidence shows a disdain for unilateral executive war-making authority—a prospect that calls to mind the worst facets of monarchy. Via Glenn Greenwald at Salon, then future Supreme Court Justice John Jay made the case against such a scheme in Federalist No. 4:

“It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.”

Barack Obama cares no more for the Constitution or rule of law than George W. Bush did. And the longer his administration goes on, the more I become convinced of a near-seamless continuity between the two.

- Max

max.canning@gmail.com