Libyan War & The Constitution

Always anxious to put the best possible face on the illegal actions of the Obama Administration, the Saturday Washington Post story by David A. Fahrenthold reported that President Obama had “missed a legal deadline” requiring that he obtain congressional approval for U.S. military operations in Libya. The word “missed” implies an oversight or mistake, rather than a deliberate action. Hence, the Post wants to avoid the issue of whether Obama’s unauthorized attack on Libya was an impeachable offense.

 

The Post failed to note that Obama, when he was running for office, said, “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.” There was no threat to the U.S. from Libya.

 

Indeed, The Post failed to explicitly note that the War Powers Resolution, with the 60 day deadline, authorizes the use of force only in situations “where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.”

 

The law states that “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to

 

(1) a declaration of war,

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

 

Since there was no declaration of war or statutory authorization for the Libya action, there has to be a national emergency created by an attack on the U.S. There was none in the Libya case.

 

Law professors such as Bruce Ackerman of Yale have noted that Obama’s war is unconstitutional, but you don’t have to be a law professor to come to this conclusion. The Obama action in Libya is both illegal and unconstitutional based on a clear reading of the law and the Constitution.

 

But the liberal-oriented PolitiFact.com, noting Obama’s campaign statements about the law, preferred to just call it a “flip-flop” on Obama’s part.

 

On Fox News Sunday, Senate Republican Leader Senator Mitch McConnell was even more evasive and irresponsible.

 

Asked by host Chris Wallace about the U.S. operation in Libya passing a 60-day mark on Friday, and the President being required to get a renewal of support from Congress or start pulling out troops, McConnell said: “I don’t know what we’re going to do on the War Powers Act. The administration is going to have to decide whether it thinks it was triggered and we’ll have to respond to that.”

 

In fact, Obama was in violation of the law when he sent military forces into Libya, without regard to the 60-day deadline, because there was no imminent threat to the U.S.

 

Rather than call for Obama’s impeachment, McConnell said he was depending on Senator John McCain, who has recently been praising and appearing on Al-Jazeera, for the answer. “Senator McCain has been to Benghazi [Libya] as I think everyone knows. He is keeping us posted on what he thinks ought to be done. And, frankly, it’s a bit confusing now and we’d like see the administration clear it up,” said McConnell.

 

There is nothing confusing about it. The law is clear and McConnell, under the guidance of McCain, has decided to ignore it.

 

Rather than obtain congressional authorization, Obama has sent a letter to Senate and House leaders John Boehner, Nancy Pelosi, Harry Reid, and Mitch McConnell updating them on the United States’ military actions. In the letter, Obama says it was sufficient that he got support for the military operation from the Arab League and the United Nations.

 

For his part, McCain wants Obama to go beyond the illegal actions he has already engaged in. He is urging the administration to recognize the Transitional National Council in Benghazi as the legitimate voice of the Libyan people and for the U.S. to provide “support to the opposition, including money and the facilitation of arms.”

 

Interestingly, McCain made these remarks during a speech at the taxpayer-funded U.S. Institute of Peace. The entity has a new headquarters, a 150,000 square-foot, five-story building (which includes space for underground parking) and which cost $186 million (most of it taxpayer money) to build.

 

In a mostly positive story about the new building, which will be officially dedicated in October, the Post noted, “Permanence is the inherent goal of all government departments and agencies, and the folks at the Peace Institute must be breathing a huge sigh of relief.” However, the article quoted a recent editorial in The Washington Post, “by peace advocate and educator Colman McCarthy,” as saying that the institute hasn’t been tough enough in the past on U.S. allies.

 

McCarthy, a columnist for the Post for years, is today on the adjunct faculty at American University, Georgetown University Law Center, the University of Maryland, and teaches a daily class at Bethesda-Chevy Chase High School.

 

He’ll probably end up as a guest lecturer at the Institute of Peace, as a counter-weight to well-known peace advocate John McCain.

Cliff Kincaid is the Director of the AIM Center for Investigative Journalism, and can be contacted at cliff.kincaid@aim.org.

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