Obama's Decision to Attack Libya is Unconstitutional

How many threads are needed on this topic? The war powers act has been discussed, he has 60 days from the start of hostilities to get congressional approval so this is not an unconstitutional act.

That said, this is more than just a no fly zone. We are seeking regime change and are completely in with the rebels. Can't say the same for the Arab League.


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Originally posted by aptness

But regarding your points about the United Nations Charter, the action being taken against the Gaddafi regime is pursuant to Article 42, not Article 43. Article 43 is for the establishment of a UN army.

In the United Nations Participation Act of December 20, 1945 — codified at 22 USC 287d — the Senate implemented the following provisions—

The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution, providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter ...

You bring up a great point with the U.N. Participations Act, that, admittedly, I had forgotten to bookmark when I was going through laws. This, of course, makes me wonder: How far can the U.N. go in terms of "giving permission" to the United States military, regardless of what our Constitution says about the limits of our branches of government, until a flag is raised? I'd also like it to be noted that this Act is a Federal Law, and therefor its constitutionality is able to be questioned.

Moreover, the United Nations may have authorized the war in Libya but it legally cannot command any country to actually partake in any attacks - that shot was called by Pres. Obama.

In the current sense, by "putting boots on the ground" in Libya would be considered illegal by the United Nations, according to the most recent Resolution 1973. But, has it not been confirmed that SAS are located within the country? I will be digging today to see if I can find any affirmation that the U.S. has any Special Forces in place in Libya at the moment, especially given the short response time between the passing of the U.N. Resolution 1973 and the missile attacks.


I would also like to add this: Back in '07 when Obama was running for office he was interviewed by Charlie Savage, one question pertaining to the President's constitutional authority of using military force without authorization from Congress. Here was his response:

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.

As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent.

So, it can be clearly seen that he did understand that the Commander in Chief does not hold constitutional right to authorize a military attack, including cruise missile strikes, without Congressional authorization.

Power under the Constitution and power under Federal Law seem to differ, no? The POTUS specifically sought U.N. approval for these actions, yet made no such attempt to gain approval of the United States Congress.

Originally posted by space cadet
reply to post by Konah

 

Obama did not make the decision to attack Libya.The UN made the decision to attack Libya.

..no .. the UN doesn't make ANY decision to attack anyone. UN is a tool used by powerful countries to justify reasons to attack other, weaker, countries and then use this justification to placate the ignorant population to falls for it.

But still it wasn't "illegal" because the laws on the books say the President can launch attacks on other countries and deploy troops/weapons for a given amount of time..

Doesn't mean it's not dumb.. if he wanted to attack he should have launched his little war with the Brits/French back when rebels were at Ghaddafis front door... but they needed civilian casualties en mass to make a Humanitarian Justification .. so now that Ghaddafi's killed numerous people, we can justify our little war.

But please, Liberals, I'm talking to you... stop thinking the UN decides anything. And for the love of God, stop thinking it has any power over the US, or any other Veto member.

Originally posted by Konah
This, of course, makes me wonder: How far can the U.N. go in terms of "giving permission" to the United States military, regardless of what our Constitution says about the limits of our branches of government, until a flag is raised? I'd also like it to be noted that this Act is a Federal Law, and therefor its constitutionality is able to be questioned.

I think 22 USC 287d serves to respond to your first question — Congress requires ratification and approval for an Article 43 military action, but not for Article 42.

Regarding your second question, and the more general constitutional question, the answer is not as obvious. I think it will depend on the interpretation of the “declare war” clause of Article I Section 8.

If you think that it is literal and exclusive, than in every circumstance military force is used, regardless of how broad hostilities are and how long they last, even in self-defense, then only Congress can authorize the armed forces to be used. And if that is so, then the War Powers Act, Congress itself enacted, is obviously unconstitutional, as no derivation from the clause in Article I Section 8 can occur.

I don’t think it’s meant to be taken this literally, and I will elaborate more below.

So, it can be clearly seen that he did understand that the Commander in Chief does not hold constitutional right to authorize a military attack, including cruise missile strikes, without Congressional authorization.

I think it’s noteworthy that Obama said unilaterally: “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.”

He could with this mean the kind of military action like the one taken in Iraq by the Bush administration, where there was no mandate from the pertinent authority regarding these matters (UN), or an unilateral attack on Iran, again, without a UN mandate.

I share this view, especially since we are a party to the treaty (UN Charter), and, at least so far, it hasn’t been deemed unconstitutional, so military action pursuant to the Charter would also be in pursuance of “the supreme law of the land.”

Of course there was no UN when the Framers wrote the Constitution, but I think with the “declare war” clause they intended to avoid, or at least mitigate the possibility of a President, unilaterally, and against international norms, committing our nation to a war; and not to be taken literal in the sense that military action is only constitutional when a formal declaration of war is made, or that in all circumstances require Congressional approval.

Or Obama could have meant exactly what you think he meant and he is now being an hypocrite. Certainly, having failed to live up to many of his promises, and actually contradicting many of them, this possibility shouldn’t shock anyone by now.

"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."
-Barack Hussein Obama, December 20, 2007

Source:www.boston.com...

It's like it's 2003 all over again. People trying to justify what the president does, people outright lying when suggesting this isn't unconstitutional, people bringing up the UN as if we don't have huge sway over their decisions....

Really, it's pathetic is all.

reply to post by aptness


I appreciate your post there, I enjoyed it. I'd go back to edit my OP if I could, but too much time has passed; I am of the belief that the attack is indeed unconstitutional, though international legal. The Federal Law that allows the U.N. to give the President the ability to attack a foreign nation irregardless of whether or not they've attacked us, war is declared, or Congress give's him authorization, is unconstitutional because it allows him to bypass the Constitution by proxy. So there is a difference to be noted between "illegal" and "unconstitutional".

I agree with most of what you said, except for the bit about Bush's war in Iraq; I do not agree with the fact that we engaged in war in the Middle-East, but he did actually receive specific statutory authorization (sadly). And even though the U.N. authorized military force, their authorization has no sway over the actual Constitution but on a Federal Law. Also, I believe in the context he was speaking "unilateral" was referring to not consulting Congress, and therefor we the people, for their opinion.

And @SpectreDC: I'm not really sure how to respond to you; your post doesn't seem to clearly show your stance, at least the way I'm reading it.

Originally posted by Konah
The Federal Law that allows the U.N. to give the President the ability to attack a foreign nation irregardless of whether or not they've attacked us, war is declared, or Congress give's him authorization, is unconstitutional because it allows him to bypass the Constitution by proxy. So there is a difference to be noted between "illegal" and "unconstitutional".

I completely agree there is a distinction between illegal from an international law perspective, and unconstitutional, and I have in different debates regarding the war, namely Iraq, pointed out this distinction.

Regarding your point about the 22 USC 287d statute, you point out, and rightly, that Bush got statutory authorization for the war in Iraq, but, and if I understood your position correctly, you believe that is consistent with the constitutional requirement, or at least your post seems to imply as much. My question, then, is why is not 22 USC 287d consistent with that same requirement?

Can’t 22 USC 287d be seen as specific statutory authorization for the President to use the military for Article 42 action? Do you think 22 USC 287d and the AUMFs differ in that respect, and if so, why?

Also, I believe in the context he was speaking "unilateral" was referring to not consulting Congress, and therefor we the people, for their opinion.

I don’t disagree, and I, in fact, said it was the more likely possibility. Being an hypocrite doesn’t make his actions against the (existing) law though, and that is what we’re discussing here.

After all, politicians being hypocritical happens every time they open their mouths, basically, so I don’t think that point is that worthy of discussion

1. Technically he did not declare war.

2. The Act says that the president HAS to discuss it with Congress with in 48 hours of deploying troops, and may ONLY do so in case of a hostile situation where it is believed that an attack on us is eminent. That was NOT the case here. What he did was against the set rules and disrespectfull.

3. The fact that the uspet Congress is not willing to call their vacation short to deal with the situation is even more frustrating to tell you the truth. Fire them all! Slackers.

reply to post by mrsdudara


Another loophole (imo, it's a loophole anyways) is the lack of definition regarding our navy and missiles. The President is pretty much saying since we only launched cruise missiles it wasn't an invasion (Clinton did this as well in the 90's) .. our airforce and Navy also don't consider invading a country an invasion -- only actual ground troops apparently fall into this definition..

Something our Presidents have been doing since the end of the Korean War.

Originally posted by aptness

Can’t 22 USC 287d be seen as specific statutory authorization for the President to use the military for Article 42 action? Do you think 22 USC 287d and the AUMFs differ in that respect, and if so, why?

I don't think that 22 USC 287d grants specific statutory authorization because at the end of it it also states this:

...nothing herein contained shall be construed as an
authorization to the President by the Congress to make available to
the Security Council for such purpose armed forces, facilities, or
assistance in addition to the forces, facilities, and assistance
provided for in such special agreement or agreements.

Beyond that point, I don't (personally) think an outside body, the United Nations, should have the right under Federal Law to authorize the use of U.S. forces without the people (re: Congress) voicing their input. There is a reason we have checks and balances; this Law kind of upsets the scales a bit, no?

reply to post by Rockpuck


Oh Geez Im so tired of their loopholes. That's like my son last night scribbled a signature where the parents were suposed to sign. Technicaly it was neither mine nor my husbands name, dont think it was a name at all just looked like a signature. So he couldnt be in trouble for forgery. Guess he is going to be the President some day.

Originally posted by Konah
I don't think that 22 USC 287d grants specific statutory authorization because at the end of it it also states this:

The way I read that proviso of 287d is that it warns that nothing in 287d can be construed as giving authorization to the President to use armed forces for a UN request of noncombatant assistance (287d-1).

If you read the clause like you are, then 287d as a whole is useless, because only 287d-1 would specify what is allowed, and that’s noncombatant assistance exclusively, but, as 287d-1 already explains, noncombatant assistance is entirely up to the discretion of the President and doesn’t require Congressional authorization.

Why would 287d-1, that doesn’t require Congressional authority and is only for noncombatant assistance, would be controlling 287d, which specifies how the armed forces can be used and under which circumstances, in pursuance of the Charter (Article 42 and 43)?

Beyond that point, I don't (personally) think an outside body, the United Nations, should have the right under Federal Law to authorize the use of U.S. forces without the people (re: Congress) voicing their input.

Two points.

(1) You’re assuming that 287d isn’t granting the President authority to use the armed forces in pursuance of Article 42 and

(2) You’re forgetting Congress already voiced their input, by ratifying the UN Charter and enacting the provisions, such as 287d and 287d-1, which specify what authority the President has, when he doesn’t what he has to do, and how he can act, in pursuance of certain UN missions.

There is a reason we have checks and balances; this Law kind of upsets the scales a bit, no?

That is if one takes the view that action taken pursuant to a Security Council resolution to restore international peace and security qualifies as ‘war’ in the Constitutional sense.

In the Senate Report 717, “Report Providing for the Appointment of Representatives of the United States in the Organs and Agencies of the U.N., and to Make Other Provisions with Respect to the Participation of the United States in Such Organization” (1945), the committee noted—

Preventive or enforcement action by these forces upon the order of the Security Council would not be an act of war but would be international action for the preservation of the peace and for the purpose of preventing war. Consequently, the provisions of the Charter do not affect the exclusive power of Congress to declare war.

Congress’ understanding, at the time they were discussing the ratification of the UN Charter, seemed to be that such action wouldn’t qualify as war, in the Constitutional sense, and nothing in the Charter would “affect the exclusive power of Congress to declare war.” (source, pp 14-15, note 89)

reply to post by space cadet


Can you explain where in our constitution does it give the U.N. authority to tell the POTUS wither he needs to attack without approval of congress.
The only way that he can take action by executive order is under imminent attack and that never was the case.
He must get approval from congress only.

Originally posted by crawgator406
Can you explain where in our constitution does it give the U.N. authority to tell the POTUS wither he needs to attack without approval of congress.

Member states don’t have to participate. Germany, for instance, decided not to (source)—

Earlier on Friday, both Malta and Germany announced that they would not take part in the international campaign — although, as BBC News reported, German Chancellor Angela Merkel said: “We unreservedly share the aims of this resolution. Our abstention should not be confused with neutrality.”

The only way that he can take action by executive order is under imminent attack and that never was the case. He must get approval from congress only.

That’s not what the War Powers Act says. Absent a declaration of war or statutory authorization the President can use the armed forces up to 60 days [50 USC 1544(b)].

The only requirement, at this point, was for the President to submit a written report “within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate” informing Congress of the introduction of the armed forces “into hostilities” or “into the territory, airspace or waters of a foreign nation, while equipped for combat.” [50 USC 1543(a)]

The President did that.

There are a lot of threads on ATS concerning the illegal and unconstitutional acts being committed by the POTUS. I have refuted a few by using the War Powers Act and have seen others doing the same.

Unfortunately there are those who still view it as illegal and unconstitutional. So, my question to those who oppose the President's actions, "what are you going to do?"

Are you going to protest? Write your Congressman? Put an op ed in your paper? What are you going to do to change the way your government thinks?


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The problem is we have far too many statutes with far too little principle in the legal system. Debating whether or not something is legal or unconstitutional is almost pointless, as generations upon generations have scribbled on paper to mark their place in legal history and filled it full of meaningless drivel that forsakes the entire concept of law and order.

You will always find some law that gives someone the authority to do something while finding another law that would seem to indicate that same act to be a no-no.

That said - it would be worth judicial review on this one, honestly. Whether the president is found guilty and fed to wild boars on live television, or not, is water under the bridge. The real problem cannot be fixed by judicial review alone.

The problem is that we had a President issue an order to attack another sovereign nation without consulting Congress. For good cause or not, whether we are in agreement or not - it's a huge problem when one person can make such powerful decisions with a far-reaching impact on the economy, national security, diplomacy, and taxpayer obligation.

Sure - if China is getting ready to steamroll the West Coast in some kind of unprecedented amphibious assault of mythical proportions - you don't want to have to mess with bureaucracy - you need to act and act yesterday. But when deciding whether or not to get involved in another country's civil war/rebellion... that's an entirely different issue, and one I do not think was -ever- meant to have the War Powers Act brought into play (regardless, the wording is as it stands, even if their current use is not considered within the spirit of the act or honorable).

Whether or not Obama's actions are "Legal" and/or "Constitutional" - the situation unfolded for over a week before he took any kind of action, and did not consult Congress for permission to act in Libya (but did so with the U.N.). This, is quite honestly, an alarming act of disregard for U.S. policy and authority. This is an abusive use of power and authority that directly undermines his effectiveness as Commander In Chief. Were I the CNO, I'd be a little more cautious when taking orders from a President who has shown he is willing to walk the line between legal and unconstitutional. When you take an order - you have to trust those giving orders to be doing so in good faith of laws and regulations - you can't spend two hours analyzing every order from multiple legal and diplomatic facets.

However, I'd be damned sure to make sure the President's not dotting his Ts and crossing his Is - especially when carrying out orders with such implications for our already strained country.

And that's indicative of a command structure with problems. It will lead to second-guessing and refusal out of personal dislike of an order as opposed to real conflicts with laws and statutes.

Originally posted by aptness
If you read the clause like you are, then 287d as a whole is useless, because only 287d-1 would specify what is allowed, and that’s noncombatant assistance exclusively, but, as 287d-1 already explains, noncombatant assistance is entirely up to the discretion of the President and doesn’t require Congressional authorization...

Two points.

(1) You’re assuming that 287d isn’t granting the President authority to use the armed forces in pursuance of Article 42 and

(2) You’re forgetting Congress already voiced their input, by ratifying the UN Charter and enacting the provisions, such as 287d and 287d-1, which specify what authority the President has, when he doesn’t what he has to do, and how he can act, in pursuance of certain UN missions.

Before I address your points I want to present again, this, with my own emphasis:

22 U.S.C. §287d
The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution, providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter.

The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That, except as authorized in section 287d–1 of this title, nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.

Use of armed forces; limitations (United States Code)

After researching this more (I am preparing a lengthy letter to my Congressmen here in CT), I have come to the conclusion of the following, which would show that 287d is not useless:

The initial paragraph of 22 U.S.C. §287d gives the power to the POTUS to negotiate a special agreement or agreements (see italicized text) with the Security Council in accordance to Article 43 of the Charter of the United Nations. It is this agreement that must be ratified by Congress; it is under this agreement that the United States, or any other nation under their respective agreement, provides armed forces and assistance.

Continuing to the second paragraph of 22 U.S.C. §287d, the POTUS does not require Congressional authorization to put to use the armed forces delegated under the special agreement made in accordance to Article 43 - these forces under this agreement would have been previously approved by Congress, in accordance to the first paragraph of this code.

What is the use of 22 U.S.C. §287d? Beyond giving the POTUS the authority to create these special agreements with the Security Council, it allows him to make use of these defined forces after the agreement has been made when called upon.



The United States has made no such special agreement regarding the armed forces to be used. This effectively makes the second part of 22 U.S.C. §287d void, as the special agreement it references is nonexistent, and positively disproves his ability to authorize military action against Libya under this code.

I believe I have addressed the first point of yours. As to the second point: Congress's input has not been provided as no special agreement determining forces and/or assistance has been created (and therefor subject to approval). On your final bit, I am still thinking about how to respond. "Upon the order of the Security Council" does not sound good, that implies that they are ordering member nations... I will have to get back to you.

Thanks for going back and forth with me coolly, by the way


Now, regarding the War Powers Resolution, the POTUS still needs to have constitutional and legislative authority for the introduction of military attacks. This can be seen under Section 4a, Subsection 3b (visit the link presented here). As the POTUS has no authority under 22 U.S.C. §287d, his actions must be pursuant to a declaration of war, specific statutory authorization, or an attack on the United States by Libya.

They were not.

reply to post by Aim64C


Thank you for your input Aim, you bring up great points. I completely agree with what you said below:

The real problem cannot be fixed by judicial review alone...

...it's a huge problem when one person can make such powerful decisions with a far-reaching impact on the economy, national security, diplomacy, and taxpayer obligation...

...he situation unfolded for over a week before he took any kind of action, and did not consult Congress for permission to act in Libya (but did so with the U.N.). This, is quite honestly, an alarming act of disregard for U.S. policy and authority.

Aside from proving the unconstitutionality of his actions, this is a point I would like to be known. If, after researching more on my own or being provide new information by others, it's found that my interpretation of all of this is wrong, this is still an issue. Pres. Obama, as you said, deliberately consulted with the United Nations instead of Congress - and what's worse is that Speaker of the House Boehner did not criticize the POTUS doing this, but instead said,

"...Before any further military commitments are made, the Administration must do a better job of briefing members of Congress and communicating to the American people about our mission in Libya and how it will be achieved."

Read full article at Washington Examiner

I don't know what's worse: the POTUS pursuing authorization from the United Nations over the United States Congress, or the Speaker of the House of Rep. not thinking anything is wrong with this...


reply to post by Feltrick


Read my post above to see that President Obama has no authority, even under the War Powers Resolution, to have attacked Libya. He can't just command the military to attack any nation he wants without reason; he must have constitutional or legislative authority, which he does not. What am I going to do? I am going to finish putting together a letter concerning this to be sent to my Congressmen, and provide a copy of it to anyone who asks (in person or on here) so they may send in a signed copy as well.

What I found scary was this morning on a San Francisco radio station. They were interviewing a professor about the implications (yada yada) about what is going on in Libya. The professor then went on to address defending those that can't defend themselves...innocent victims of war crimes. He listed Libya, Yemen, a couple other examples and then mentioned Israel shelling Gaza and Lebanon. The interviewer then asked for clarification (incensed almost) "are you telling me that Israel attacking Gaza is the same as Libya attacking its citizens? (or something to that effect.)

The professor responded, "Yes, a war crime is a war crime and..."

He was cut off "Well, we're out of time....", this despite the fact that the interview lasted no more than 2 minutes and it was 10 till the hour...hardly time for a commercial break.

Make your own inferences here.