Obama's Decision to Attack Libya is Unconstitutional

Originally posted by Aim64C
The problem is we have far too many statutes with far too little principle in the legal system. ... 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.

I don’t agree with this assessment. Everyone makes appeals to a particular piece of legislation or precedent to support their theory, but just because you can’t understand completely the legal complexities, or determine if they are right, doesn’t mean their arguments have merit.

The problem, I believe, lies instead with the lack of enforcement and accountability. And that, unquestionably, helps create the idea that what the law is doesn’t really matter.

The problem is that we had a President issue an order to attack another sovereign nation without consulting Congress. ... 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.

I’m all for people keeping a check on executive power, but it’s disingenuous, or at least historically false, to make it seem like this is unprecedented or particular to this President.

Here is a list of instances of use of US armed forces abroad. It was done by the Congressional Research Service and it lists military action abroad from 1798 to 1993. It’s not up-to-date but it’s enough to get an idea of the scope of the problem. The report “lists 234 instances in which the United States has used its armed forces abroad in situations of conflict or potential conflict or for other than normal peacetime purposes.”

The report notes—

The instances vary greatly in size of operation, legal authorization, and significance. ... Some actions were of short duration and some lasted a number of years. In some instances a military officer acted without authorization; some actions were conducted solely under the President's powers as Chief Executive or Commander in Chief; other instances were authorized by Congress in some fashion; five were declared wars.

In a 1995 Office of Legal Counsel memo concerning the war in Bosnia, Walter Dellinger, Assistant Attorney General at the time, noted that—

Historical practice supplies numerous cases in which Presidents, acting on the claim of inherent power, have introduced armed forces into situations in which they encountered, or risked encountering, hostilities, but which were not "wars" in either the common meaning or the constitutional sense. As the Supreme Court observed in 1990, "[t]he United States frequently employs Armed Forces outside this country -- over 200 times in our history -- for the protection of American citizens or national security." United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). In at least 125 instances, the President acted without express authorization from Congress.

I do not think was -ever- meant to have the War Powers Act brought into play

Just out of curiosity, what do you think is the purpose of the War Powers Act and when should it be “brought into play”?

reply to post by redstripe1229


People do not want to knowledge it, plain and simple, especially the news outlets. I agree with the professor; if the U.N. wants to take action against leaders of nations limiting the freedoms by oppressive force, so be it, but do it across the board.

I whole-heartedly believe the United States has absolutely no business doing this. The U.N. may, with the proper use of coalition forces, approved by their respective governing bodies. This whole "World Police" thing needs to end.

reply to post by aptness

I’m all for people keeping a check on executive power, but it’s disingenuous, or at least historically false, to make it seem like this is unprecedented or particular to this President.

Just because it has happened before doesn't make it right. Those who've acted without constitutional or legislative authority before, at the expense of spilled American and foreign blood among other things, were just as in the wrong.

So................................

2nd - So is his Presidency
3rd

Ban me Flame me

It just doesn’t matter if the UN and our government shares an agenda. It’s going to happen with, or without their consent. Perhaps they already have reached this realization? Look at the media, you won’t see this clamoring for humanitarian intervention in Cuba, or Somalia, will you? “Oh the humanity, the suffering!” Yeah right.

Libya is the only country of interests for the media and just happens to coincide with our appetite for conquest. It has a relatively small military and population with sizable oil reserves. And what, does anyone really think we would just pass that up? Personally I would be astonished, absolutely amazed, if we were not in a full blown occupation within a year. Well we have to pretend to be reluctant at first. I’m sure the situation will be cooked to perfection and served to “we the people” on a golden platter. It won’t matter if we buy it or not, because the media will just dictate that we had.

The Iraq invasion was a fraud presented through hand picked false intelligence. It’s a known lie. We invaded because of corporate greed and remain their because of popular guilt. If we would have simply admitted it was a mistake, we would have been out of Iraq in months, not years. Instead it was corrupted as some moral mission to bring the people democracy, cable TV and McDonalds. Bravo, perfectly orchestrated and executed. And what about the perpetrators of this immense hoax, Bush, Cheney, Rumsfeld, what will happen to them? Absolutely nothing.

They don’t even have to spin this to the public, because our history with Iraq has clearly demonstrated they don’t need to. There are absolutely no political, or criminal consequences, for wrongly invading another country. So if the UN want’s to unleash us with a wink and a nod and it helps in our acquisition of oil, oh yeah, you can bet it’s going to happen. Legal or not doesn’t matter, it’s going to be done anyway.

Originally posted by Konah
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..

Thank you for your reply.

Under that interpretation of 287d, however, it’s not just the action in Libya that would violate the statute, because, since there are no Article 43 agreements, then all uses of the armed forces pursuant to a Security Council resolution, not pre-approved by Congress, were violations, and there were many. Is that your understanding?

But more importantly, where does Article 42 fall under your current interpretation of 287d? You didn’t make a single mention of it, but Article 42 is mentioned in the statute. If there was an Article 43 permanent UN force the UN didn’t need to use an Article 42 to authorize the use of force since it could call upon its own force. As explained on that previously mentioned UN page—

As the United Nations does not have any armed forces at its disposal (for details, see Article 43), the Council uses Article 42 to authorize the use of force by a peacekeeping operation, multinational forces or interventions by regional organizations.

How do you conciliate your interpretation, where Article 42 doesn’t even come into play even though it is mentioned in the staute, and with the fact that the UN has to authorize force under Article 42 because there is no Article 43 force?

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

Well he has asserted authority: Reading Obama’s report, pursuant to Section 4(a) [50 USC 1543(a)] of the Act you mention, he is asserting he has authority because it’s in pursuance of a Security Council resolution, but mainly because it is “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.” He has taken an inherent powers position, it seems.

Quite frankly I don’t think Congress will push on this issue.

reply to post by JakesterL


While I understand where you are coming from and agree with the points you've brought up, if we sit by idly then of course the United States, and the United Nations (if we can eventually prove their mutual agenda), will slip by squeaky clean.

Just as it is the duty of the President, Congress, armed forces, etcetera, to serve the Constitution, it is also our duty as United States citizens to serve it as well. No, we've taken no oath to do so, but letting it happen without any attempt whatsoever to bring the Nation's attention to it makes us just as guilty.

I will provide a copy of the letter I plan to send to my Congressmen, upon completion, at anyone's request if you do not wish to write one yourself. Spread the information, notify those who represent us. That's what we can do, and if people truly care they will respond - but at least we can say that we tried.

reply to post by aptness

But more importantly, where does Article 42 fall under your current interpretation of 287d? You didn’t make a single mention of it, but Article 42 is mentioned in the statute. If there was an Article 43 permanent UN force the UN didn’t need to use an Article 42 to authorize the use of force since it could call upon its own force...

...How do you conciliate your interpretation, where Article 42 doesn’t even come into play even though it is mentioned in the staute, and with the fact that the UN has to authorize force under Article 42 because there is no Article 43 force?

Article 42 only authorizes the use of land, sea, or air forces. Article 43 states that the U.N. members must make available these forces in accordance to the "special agreements". Under Article 43 there wouldn't need to be a permanent U.N. force, but forces would be delegated with the "special agreements" made when the need arose. After making said agreement under Article 43, Article 42 would call upon those forces.

Hence, in 22 U.S.C. §287d the President is delegated the power to make the special agreements, which are then subject to approval by Congress, and upon approval of the agreement he may use these forces without authorization. This is why 22 U.S.C. §287d doesn't give the POTUS specific Congressional approval for the use of the military; under this Congress as the ability to approve the "making available" of the forces. (I hope that makes sense, I am a little tired)

I've read through his report as well, but he is asserting the authority based only off of the Article 42 Proposal without a "special agreement" outlined in Article 43 and 22 U.S.C. §287d; so he doesn't have legislative authority. As for his ability to conduct foreign affairs matters and being Commander-in-Chief; the attack wasn't defensive, at war, or give Congressional authorization, so he would have the right under constitutional law.

I think he has taken the inherent powers position as well. Unless the few Congressmen who have spoken out gain support, I doubt it will be pushed either, sadly.

Originally posted by Konah
Just because it has happened before doesn't make it right. Those who've acted without constitutional or legislative authority before, at the expense of spilled American and foreign blood among other things, were just as in the wrong.

I didn’t meant to imply that it was ‘right.’ I was pointing out the history and precedents in response to those who pretend what the current president did is unprecedented.

The crux of the problem is that although you assert it, no one really knows, at this point, if it is ‘right’ or not. As I posted previously there were many instances where the President didn’t get Congressional authorization and Congress did nothing. Did they concede the President could do it? Assuming it‘s exclusive to Congress could they even, constitutionally, concede or delegate? It’s anyone’s guess.

Congress claims exclusive power to declare war and the President must request authorization first — although on that Senate Committee concerning the UN Charter they apparently conceded there are circumstances that don’t qualify as war in the constitutional sense — and Presidents claim they have inherent powers and authority to do it.

The, constitutionally dubious, War Powers Act was intended as a middle-ground solution, and Presidents have traditionally asserted it’s unconstitutional, but even the Act seems to suggest the President has some authority to introduce troops into hostilities without prior Congressional authorization. As Walter Dellinger explains in another OLC memo—

The [War Powers Resolution] requires that, in the absence of a declaration of war, the President must report to Congress within 48 hours of introducing armed forces into such circumstances and must terminate the use of United States armed forces within 60 days (or 90 days, if military necessity requires additional time to effect a withdrawal) unless Congress permits otherwise. Id. § 1544(b). This structure makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress: the [War Powers Act] regulates such action by the President and seeks to set limits to it.

reply to post by aptness


I hear ya. I'm really not sure how to go about confirming why I've researched, shy of contacting my Congressmen and hoping for a response. Maybe I should try to contact a judge and hope they take me seriously?

Absent a declaration of war, Congress still holds the right to declare a reprisal.

Reprisal: An act taken by a nation, short of war, to gain redress for an action taken against that nation

What would you call what's happening in Libya? We've been grossly offensive in our tactics without any attack to our nation; instituting a no-fly-zone over a sovereign nation followed by bombing their military targets could very easily be considered an act of war. I believe Ron Paul brought this up prior to the U.N.'s decision (not sure of the exact date). And no part of the Constitution, nor the War Powers Act, gives permission to initiate a war nor any actions that may initiate a war.

Addition: Here's a link to a report and post-bombing video with Ron Paul, interviewed by Anderson Cooper.
Ron Paul, no-fly-zone

Originally posted by Konah
I hear ya. I'm really not sure how to go about confirming why I've researched, shy of contacting my Congressmen and hoping for a response. Maybe I should try to contact a judge and hope they take me seriously?

I wouldn’t worry about it. Even if you did contact your Congressmen or a judge, all they could give you is their opinions, they couldn’t give you a ‘right’ answer because these are constitutional questions that have never been resolved.

I believe, in fact, that all lawsuits contesting Presidential power to introduce the armed forces into hostilities without Congressional authorization were all dismissed as non-justiciable political questions or lack of standing of the appellant. In other words, they all punted.

I concede that your interpretation of 287d, having now understood your point, does make sense, but if Presidents, as Obama apparently is doing, assert this falls within Presidential inherent powers then 287d is irrelevant because the assertion makes 287d inapplicable, for being supposedly being unconstitutional, irrespective of interpretation.

What would you call what's happening in Libya?

I wouldn’t call it a war, at least in the constitutional sense that I understand the purpose of the “declare war” clause in Article I Section 8, but it’s definitely not peace.

And no part of the Constitution, nor the War Powers Act, gives permission to initiate a war nor any actions that may initiate a war.

Well under your interpretation of 287d, and assuming the WPA is constitutional, then Obama couldn’t initiate this attack because there’s not an Article 43 agreement, because otherwise, the Act says he can “introduce troops into hostilities” up to 60 days without Congressional approval.

The ironic thing about it is that, if Obama was acting unilaterally and not in pursuance of a UN resolution, then 287d proviso wouldn’t apply, and there was no impediment as per the WPA. As long as he didn’t went over the 60 days limit, that is.

What a mess.

Originally posted by Konah
What would you call what's happening in Libya? We've been grossly offensive in our tactics without any attack to our nation; instituting a no-fly-zone over a sovereign nation followed by bombing their military targets could very easily be considered an act of war. I believe Ron Paul brought this up prior to the U.N.'s decision (not sure of the exact date). And no part of the Constitution, nor the War Powers Act, gives permission to initiate a war nor any actions that may initiate a war.

I've been pondering over the questions again and again and again.

It's comparable to the Bosnian conflict of the 1990's. Orthodox Serbs rolling through Bosnia and slaughtering Muslims. Clinton went in with the UN and put a stop to it, with little, if any congressional approval. Numerous Serbian military leaders were captured and charged with crimes against humanity.

Ghadafi had begun hiring mercenaries from outside of Libya to work with what was left of the Libyan military to destroy the opposition, physically and mentally. The UN took immediate action to halt or at least slowdown what was beginning to transpire in the country.

There are so many questions that can be asked. One that I can't answer: Why do it here and not Sudan?

If what the president did was illegal and he's impeached for it, I can't look down on an action that potentially saved tens of thousands of peoples lives for fighting against a tyrannical leader who was willing to stop at nothing to kill his own people to maintain his power.

Hate me for it, I don't care.

reply to post by links234

If what the president did was illegal and he's impeached for it, I can't look down on an action that potentially saved tens of thousands of peoples lives for fighting against a tyrannical leader who was willing to stop at nothing to kill his own people to maintain his power.

Hate me for it, I don't care.

People fighting against a tyrannical leader, who's willing to stop at nothing . . . to maintain his power

The people of Libya are currently engaged in a civil war, as we once were with Great Britain. They have their own right to rise up and overthrow their government if they so choose; however, on top of the "rebels" there are also Ghadafi supporters. What right do we have to fly in their and bomb whatever we please and turn the tides of the uprising in the direction we choose? We have none. It's one thing to curtail Ghadafi's power to hire mercenaries to fight for him. We are not the world police. It's the "rebel's" right to rise up and fight, and supporters of Ghadafi to defend him and his policies: Whatever the outcome, they should be able to decide it themselves.

Blood will be shed, it is always shed. But the strength of the new government when the people themselves overthrow Ghadafi will be much stronger and have more support than if we bomb the crap out of Ghadafi forces and hand the rule to a rebel leader.

All of that aside, the point of this thread is not to debate whether or not we should go in and sway the tides of the civil war in the way we choose, purposedly for humanitarian reasons, but to prove President Obama's actions were unconstitutional.

Originally posted by Konah
reply to post by JakesterL

 

While I understand where you are coming from and agree with the points you've brought up, if we sit by idly then of course the United States, and the United Nations (if we can eventually prove their mutual agenda), will slip by squeaky clean.

Just as it is the duty of the President, Congress, armed forces, etcetera, to serve the Constitution, it is also our duty as United States citizens to serve it as well. No, we've taken no oath to do so, but letting it happen without any attempt whatsoever to bring the Nation's attention to it makes us just as guilty.

I will provide a copy of the letter I plan to send to my Congressmen, upon completion, at anyone's request if you do not wish to write one yourself. Spread the information, notify those who represent us. That's what we can do, and if people truly care they will respond - but at least we can say that we tried.

Sharing an agenda is probably wrong phrasing, since it assumes mutual coordination. I think it’s more that in this issue, our government wants to be there and as said, any excuse as good as another. Let me know when that letter is complete. I will be doing one of my own. Although it will be challenging not to present it as an accusation. There is no way anyone can convince me another war is the will of the people. Even if there is the slightest possibility enough awareness can make a difference, it’s well worth trying. Once we step foot in Libya it will be too late. As our history has shown, once we’re there any reason that works, will be the justification to stay. Everyone knows starting a war is easy, ending them not so.

reply to post by aptness

I don’t agree with this assessment. Everyone makes appeals to a particular piece of legislation or precedent to support their theory, but just because you can’t understand completely the legal complexities, or determine if they are right, doesn’t mean their arguments have merit.

The problem, I believe, lies instead with the lack of enforcement and accountability. And that, unquestionably, helps create the idea that what the law is doesn’t really matter.

The problem you see is indicative of the problem I just mentioned. We have created a system where the ruling of one judge one one case will influence hundreds, even thousands of other cases (if not outright be used to judge subsequent cases) and where judges spend more time reading through law books as opposed to applying common sense and principles of law (as opposed to the intricacies of law).

When our laws become complex and based in libraries worth of text as opposed to simple, principled laws; those laws can only be enforced by a select few as opposed to the common man/woman.

You can't enforce laws you don't know about - or understand. The people cannot keep the bureaucracy in check so long as a bureaucracy is obscured in institutionalized complexity.

I’m all for people keeping a check on executive power, but it’s disingenuous, or at least historically false, to make it seem like this is unprecedented or particular to this President.

This is quite unprecedented. I'll cede that I know a number of people in the military who currently or have gone on missions that didn't officially happen.

Obama signed and authorized the deployment of the military in an effort to topple another government -without- the consent of congress. Of course, it's as half-assed as everything else he does, and there's a complete lack of any strategic mission or goals - so it's going to be one hell of wild ride with this douche in command.

This wasn't an operation to suppress nuclear proliferation or to pull an informant out of hostile territory, the elimination of pirates, etc. This was a declaration of war accompanied with military response as declared by our President - not by our Congress, nor was it done with consent of Congress.

It goes beyond a military act alone and becomes a foreign policy power the President has -never- been allowed to have in the past, and should not be allowed to have now (not that we can say "oops... we didn't really want to go to war with you... we cool?" - we're committed now).

This, seriously, reminds me of "Dr. Strangelove or How I learned to Stop Worrying and Love the Bomb." Whether we hang Obama for treason or keep him in power (or anywhere inbetween) - we have no choice but to commit to -another- war front.

At this rate, we're just going to have to start leveling cities because we can't afford to police half the damned world. Not that I'm all that opposed to a logical elimination of extraneous sociopolitical factors - but other people who like to let things like a heart govern military and political strategy tend to frown on that - and until they can be eliminated as well, it's best to play by their rules.

Just out of curiosity, what do you think is the purpose of the War Powers Act and when should it be “brought into play”?

For instances necessitating the expedient use of military force to act in defense of the U.S. and its interests. "Let's act to save the revolting citizens of another country" doesn't meet that qualification. Noble as that goal may be.

In the case in question - the President consulted with the U.N. for over a week before taking action, without ever consulting Congress (and Congress was in session at the time). The purpose of the law is to make it so the military can react dynamically without having to move at the speed of Congress, but to keep the President from committing the nation to war. Obama sought approval from the U.N. for a week before deciding to commit to an action. This was clearly not a case where the expedient use of military power was considered necessary - even by the President (In all honesty, If I were in the office and decided I valued the lives of another nation's rebels so much, I wouldn't have hesitated in establishing a no-fly zone and authorizing a strategic and tactical response; U.N. be damned and Congress to be informed in the morning. - Though, in practice, I would have probably already polled Congress for the authorization to take military action in the Middle East in reaction to the regional instability that has been unfolding for months). The time to act was within the first 36 hours, not at the last minute.

From the history section regarding this law on Wikipedia:

Under the United States Constitution, war powers are divided. Congress has the power to declare war, raise and support the armed forces, control the war funding (Article I, Section 8), and has "Power … to make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof", while the President is commander-in-chief (Article II, Section 2). It is generally agreed that the commander-in-chief role gives the President power to repel attacks against the United States and makes the President responsible for leading the armed forces.[citation needed] In addition and as with all acts of the Congress, the President has the right to sign or veto congressional acts, such as a declaration of war.

During the Korean and Vietnam wars, the United States found itself involved for many years in situations of intense conflict without a declaration of war. Many members of Congress became concerned with the erosion of congressional authority to decide when the United States should become involved in a war or the use of armed forces that might lead to war. The War Powers Resolution was passed by both the House of Representatives and Senate but was vetoed by President Richard Nixon. By a two-thirds vote in each house, Congress overrode the veto and enacted the joint resolution into law on November 7, 1973.

It was established specifically to limit the President's ability to commit the nation to war and prolonged military actions without the approval of Congress.

reply to post by Konah


In all fairness - history would have played out much differently if we did not have the French assisting us in our own revolution.

It is only natural for one country to attempt to influence the events unfolding around it for its own benefit. It's even better if the benefit is considered mutual by most parties (most would consider a free/democratic Libya with a government that values human life a good turn of events, and thus any benefits we get from supporting a revolution would be considered part of a mutual and fair exchange).

I'm not opposed to trying to set up a democratic government in Libya - however, we've also got a lot going on elsewhere in the world, and economic issues to be concerned about. We can only stretch ourselves so thin and print so much money before we're in serious trouble. Not to mention we have a process for going to war and committing to such goals that was not followed by this administration.

That's my main set of grievances.

I do, however, have my doubts about the ability of such a culture to grasp the concepts of democracy. You're dealing with regions where the solution to problems has been at the end of a blade or gun barrel for millennia. I don't mean the 'red-neck' chasing people out the driveway with a shotgun - the solution to anyone who disagrees is death and the concept of ruling by fear. It's not a change of government so much as it is a change of social ideology - and that is not as easy to change as a government.

I'll admit I have my own streak of radical militant in me - but there's a fundamental difference between: "You'd best leave me alone or die trying to pester me with your nonsensical government ideologies" and "You do as I say or get a bullet through your head."