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Why the Libyan War is important to us – and to our children

9 April 2011

Summary:  The Libyan War will have long-term consequences, no matter who eventually rules Libya.  It’s another precedent.  Another step away from the Second Republic (1788-) towards a new political regime.  One with a far stronger Executive than the Founders wanted.  One as strong as they feared.

“At last the closed doors of Independence Hall were opened and the delegates as they issued from the building found themselves surrounded by a crowd of citizens eager to know what had been the outcome of the Constitutional Convention’s long deliberations. Among them was Mrs. Powel of Philadelphia. She approached Dr. Franklin with an anxious question: ‘Well, Doctor, what have we got — a Republic or a Monarchy?” “A Republic” replied the Doctor, “if you can keep it.’”

–– From Meet Dr. Franklin, published by The Franklin Institute  (1943)

Contents

  1. Does the War Powers Resolution give the President the authority for the Libyan War?
  2. How does President Obama justify his actions?
  3. What can we do?  Why does it matter
  4. A note from the Founders
  5. For more information about the President’s war powers
  6. Other posts about our dying Republic

(1)  The War Powers Resolution (WPR)

The Libyan War does not meet the requirements for Presidential authorization of military action.  The relevant clauses are both brief and clear.

US Code Title 50, Chapter 33:  The War Powers Resolution, § 1541. Purpose and policy

Section C:  Presidential executive power as Commander-in-Chief; limitation

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.

(2)  How does President Obama justify his actions?

“They who would give up essential liberty to purchase a little temporary safety deserve neither liberty or safety.”
— From the title page of An Historical review of the Constitution and Government of Pennsylvania (1759); written by Richard Jackson and published by Benjamin Franklin

The President’s Office of Legal Council (OLC)   issued an 8 page memorandum:  “Authority to Use Military Force In Libya“, 1 April 2011.  It’s clear and imperial in tone, starting with the preface:

The President had the constitutional authority to direct the use of military force in Libya because he could reasonably determine that such use of force was in the national interest.  Prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.

The OLC does not cite the War Powers Resolution as providing an authorization for Obama’s actions in Libya, although he has complied with its reporting requirements. The opposite, in fact.  The OLC sees the ability to wage discretionary wars as an inherent part of the President’s authority,  citing the expansionary interpretation of President powers that have evolved during the past few decades.  And they cite precedents — other Presidents have waged unauthorized wars, and so can Obama.  From page 8:

As this Office has explained, although the WPR does not itself provide affirmative statutory authority for military operations, see id. § 1547(d)(2), the Resolution’s “structure . . . recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces” into hostilities or circumstances presenting an imminent risk of hostilities.

… But the historical practice of presidential military action without congressional approval precludes any suggestion that Congress’s authority to declare war covers every military engagement, however limited, that the President initiates.

Also see footnote #1:

As demonstrated by U.S. military interventions in Somalia, Haiti, Bosnia, and Kosovo, among many other examples, “the President’s power to deploy armed forces into situations of actual or indicated hostilities is not restricted to the three categories specifically marked out by the Resolution.”

The memorandum does not cite as authorization either the NATO or UN treaties.  Although often stated as authorizing this action, neither has anything remotely like such language.  For more information see Can the UN give Obama the authority to send US forces in the Libyan War?; also “The false defenders of Obama’s war in Libya” (Michael Lind, Salon, 21 March 2011).

(3)  What can we do?  Why does it matter?

{It is } I think a mistaken opinion that honor and dignity of a government are better served by persisting in a wrong measure once entered into than by rectifying an error as soon it is discovered.
— Benjamin Franklin, in a letter to Thomas Crowley, 6 January 1766

The Executive branch will not give up this power.  Congress could impeach the President — and give us each a pony, too.  It’s not a realistic remedy.

We could lobby Congress to tighten the War Powers Act, perhaps with some sanctions built in.  I have little faith that this will happen.  Or that it could have much effect if signed into law.

A cure will come only when we as a people decide to return to a Constitutional form of government.  That would mean no public support for these discretionary wars, and the senior military leadership coming to a different understanding of how to balance their duties to obey the Commander-in-Chief and defend the Constitution.

The latter is an important and seldom mentioned point.  I fear we’re slowly moving to a time where the two duties of our most senior officers will conflict, radically and unmistakably.  Perhaps not in our time, but likely in our children’s time.  I would rather we grasped this nettle, rather than bequeathing a more difficult and serious problem to them.

Why not give our President the discretionary author to wage war, the benefit of the doubt in these matters?  Alexander Hamilton, a proponent of a strong Executive, discussed this at length in the Federalist Papers (see references at the end), warning of the dangers to the Republic should this happen — and explaining why the constitutional safeguards would prevent it.

Those walls have been breached.  The President does have this authority in our new political regime — the one replacing the 2nd Republic.  Each year we give the President the benefit of the doubt to take broader measures.  Wars.  The financial bailouts in 2008-10.  Domestic surveillance, indefinite detention, now even assassination of US citizens without charge or warrant.  And a host of other measures, large and small.  Each creates precedents for further actions.

It’s a one way ratchet.  It does not take a psychic to see how this will end.

(4)  A note from the Founders

Looking at the Founders’ view of these things, the Federalist Papers about the President’s war powers:

  • #24 — The division of the war powers between President and Congress prevents an all-powerful executive, able to command an army at will.
  • #26 — The primary congressional war power is the power of the purse, a sure restraint on the President’s perogatives.
  • #69 — Hamilton explains that the President’s authority as Commander-in-Chief.

Esp note this description of the President’s powers from #69:

[w]ould be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies . . .

(5)  For more information:  articles about the Presidents war powers

The primary precedent expanding Presidential war powers;  “The Korean War:  On What Legal Basis Did Truman Act?“, Louis Fisher (Congressional Research Service), American Journal of International Law, January 1995 – American history might have taken a different course if our senior generals had gently requested that Truman first get Presidential approval.  If they had only taken their oath more seriously.

Other relevant articles:

  1. The modern breakthrough article justifying supremacy of the Executive Branch:  “The Continuation of Politics by Other Means: the Original Understanding of War Powers”, John Yoo (Prof Law, Berkeley), California Law Review, March 1996 — Yoo later earned a place in the annals of infamy by writing the legal opinions justifying torture for President Bush Jr. at the Office of Legal Counsel.
  2. A powerful rebuttal:  “The Law – John Yoo and the Republic“, Louis Fisher, Presidential Studies Quarterly, March 2011 — Abstract:

    In his articles, books, and legal memoranda for the U.S. Department of Justice, John Yoo is well known for favoring broad and even exclusive presidential power in the field of national security. Less understood is his dependence on the British model and the prerogatives it extended to the king over external affairs. In his writings, Yoo devotes little attention to the framers’ rejection of British executive prerogatives. Even less does he acknowledge their commitment to a republic, a form of government in which sovereign power is vested not in an executive but in the people.

  3. Letter to Senate Majority Leader Trent Lott on War Powers and Kosovo, from the ACLU, 30 April 1999 — esp note the documentation at the end.
  4. Another product of the cottage industry of attorneys for greater presidential power, in which the author suggests that we bend over and take the inevitable:  “The War on Terrorism and the Modern Relevance of the Congressional Power to Declare War,” Robert F. Turner (Prof, U Virginia Center for National Security Law; bio here), Harvard Journal of Law & Public Policy, March 2002 — Quite amusing, in a gallows humor sort of way.
  5. A sad history and measured analysis.  Very much worth reading:  “War and American Constitutional Order“, Mark E. Brandon (Prof Law, Vanderbilt U; bio here),Vanderbilt Law Review, 2003 — Note the lists at the end of declared and undeclared wars.
  6. Interpreting the President’s powers broadly and those of Congress narrowly:  “The Quasi War Cases – and Their Relevance to Whether ‘Letters of Marque and Reprisal’ Constrain Presidential War Powers“, J. Gregory Sidak (bio here), Harvard Journal of Law & Public Policy, Spring 2005
  7. Presidential War Powers in a Never-Ending War“, Seth Weinberger (Asst Prof Government, U of Puget Sound), ILSA Journal of International & Comparative Law, Fall 2006
  8. When Wars Begin: Misleading Statements by Presidents“, Louis Fisher (Library of Congress), Presidential Studies Quarterly, March 2010
  9. Obama’s new view of his own war powers“, Glenn Greenwald, Salon, 31 March 2011 — The links to relevant documents are priceless.  You should feel the Constitutions’s blood seeping on your hands while you read it.  But you probably will not, since you don’t care.  More appropriately, chant “Baa, Baa, Baa.”
  10. “”What Happened to the American Declaration of War?“, George Friedman, Stratfor, 29 March 2011
  11. The Cost of ‘Empty Words’: A Comment on the Justice Department’s Libya Opinion“, Michael J. Glennon (Prof of Law Tufts University), Harvard National Security Journal, 14 April 2011

(6)  Other posts about our dying Republic

For a full archive on this topic see the FM Reference Page America – how can we reform it?

Posts about Libya:

  1. Libya’s people need uninvited infidel foreigners to save them!, 1 March 2011
  2. “You just have not seen enough people bleed to death”, 8 March 2011
  3. About attacking Libya – let’s give this more thought than we did Afghanistan and Iraq, 6 March 2009
  4. Our geopolitical experts see the world with the innocent eyes of children (that’s a bad thing), 14 March 2011
  5. We’re at war, again. Another shovel of dirt on the corpse of the Constitution., 21 March 2011
  6. A war monger review, looking at the articles advocating a US war with Libya, 22 March 2011
  7. What will the world’s tyrants learn from the Libyan War? Get nukes., 25 March 2011
  8. Who are we helping in Libya? Here are some answers., 27 March 2011
  9. In America, both Left and Right love the long war, 30 March 2011
  10. Can the UN give Obama the authority to send US forces in the Libyan War?, 1 April 2011
  11. Tearing the Constitution is a bipartisan sport!, 4 April 2011

Posts about America’s future:

  1. Forecasts – Why wait? Read tomorrow’s news … today! (part I), 11 July 2006
  2. The Future of America – Why wait? Read tomorrow’s news … today! (part 2), 17 July 2008
  3. Forecasts – Why wait? Read tomorrow’s news … today! (part 3), 17 July 2006
  4. Forecasts – Why wait? Read tomorrow’s news … today! (part 4), 17 July 2006
  5. Our futures seen in snippets of the past, 16 June 2008
  6. A soft despotism for America?, 22 July 2008
  7. America reaches a tipping point as Washington becomes its heart and soul, 29 January 2009
  8. A look at America’s future – grim unless we get smart and pull together, 12 March 2009
  9. “The Coming of the Fourth American Republic”, 24 April 2009
  10. Beginning of the end of the Republic’s solvency. Soon come the first steps to a reformed regime – or a new regime., 14 August 2009
  11. More about the tottering structure of the American political regime, 17 August 2009
  12. A third American regime will arise from the ashes of the present one, 30 March 2010
  13. For America to prosper it must first burn, 22 November 2010
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6 Comments leave one →
  1. The Cost of 'Empty Words': A Comment on the Justice Department’s Libya Opinion, update permalink
    17 April 2011 4:12 am

    The Cost of ‘Empty Words': A Comment on the Justice Department’s Libya Opinion“, Michael J. Glennon (Prof of Law Tufts University), Harvard National Security Journal, 14 April 2011 — Opening:

    The April 1, 2011 opinion of the Justice Department’s Office of Legal Counsel (OLC), entitled “Authority to Use Military Force in Libya,” presents three main arguments in seeking to justify the constitutionality of the U.S. use of force against Libya:

    (1) the President has a “broad constitutional power” to order the use of force without congressional approval, particularly when the use of force isn’t really a war;
    (2) the existence of a United Nations Security Council resolution expands that power because the President has a responsibility to preserve the Council’s credibility and to ensure that its edicts do not turn out to be “empty words”; and
    (3) in any event, Congress has allowed the President to undertake this action through the War Powers Resolution, which permits him to use force for up to 60 days without specific, advance approval.

    I proceed to suggest that none of these claims is convincing and I conclude with some thoughts about OLC’s concern about empty words.

    Like

  2. A conservative attorney looks at the war, update permalink
    20 April 2011 2:00 am

    The Libyan Intervention Is Not Wholly Legal“, David Kopel, Cato Institute, 18 April 2011.

    I love the formula: “not wholly legal.” Like “not wholly pregnant”. Or not “wholly dead”.

    Like

  3. Good article about Libya and the imperial presidency, update permalink
    20 April 2011 4:50 am

    How Not to Declare a War“, Scott Horton, Foreign Policy, 11 April 2011 — “The Obama administration’s legal rationale for bombing Libya suggests that while George W. Bush may be gone, the imperial presidency isn’t. “

    Like

  4. A powerful echo from the past, a good attempt to restrain the growth of the Imperial Presidency, update permalink
    20 April 2011 4:58 am

    A good effort by 19 former Office of Legal Counsel attorneys to set standards for OLC’s advice to the President. It’s total failure shows the great momentum of the Imperial Presidency. The first few pages are essential reading for anyone interested in the evolution of the US government.

    Guidelines for the President’s Legal Advisors“, Indiana Law Journal, May 2006

    Like

  5. More warmongers misrepresenting the law, update permalink
    23 April 2011 3:13 am

    Drones In Libya: Can We Call It A War Yet?” Adam Serwer, American Prospect, 22 April 2011 — Excerpt:

    If yesterday’s briefing is any indication, the Obama administration’s view of operations in Libya still don’t qualify as a war requiring congressional authorization under the War Powers Act, which only authorizes the president to wage war for 60 days without congressional approval, in part because the deployment does not involve the significant risk to life for U.S. personnel. We are on day 33 of operations in Libya.

    There is no mystery about this. The language of the War Powers Resolution is clear. The President can “introduce United States Armed Forces into hostilities” only following:

    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.

    It does not authorize the President to use America’s military force as he wishes, subject only to a 60 day time limit. I suspect Sewer knows this quite well. But an American geopolitical expert has to lie in the good cause of supporting our foreign wars.

    Like

  6. New article in FPIF: "Libya and the New Warmongering" permalink
    12 January 2012 2:12 pm

    A rare use of the term “warmongering”: “Libya and the New Warmongering“, David Gibbs (Prof History, U AZ Tucson), Foreign Policy in Focus, 12 January 2012 — Opening:

    The NATO intervention in Libya is likely to produce a more militarized and insecure world, and this will be its most enduring legacy. The military “success”in Libya has increased the possibility of new wars. There is a widespread perception that NATO has achieved an easy victory against Gaddafi, and the resulting sense of hubris augments the risk of future military actions against Iran, Syria, and other possible targets. Politicians in NATO countries surely welcome the public distraction that war provides, especially in the context of the world-wide economic slump, and this may prove an additional motivation for new military action.

    And the Libyan success will generate heightened levels of military expenditure. The British military has already been using the intervention as an argument for more funding; the same situation will no doubt occur in France and the United States as well, where the intervention will bring political benefits to the military-industrial complexes of each country. Given limited funds, the relatively higher military budgets that result from this situation will probably reduce funds for education, health, environmental protection, and disease eradication, and also for aid to developing countries, which include Libya.

    Another consequence of intervention is the erosion of international law, as indicated by NATO’s disregard of the UN Charter and also the U.S. War Powers Resolution, which were openly flouted in the course of the bombing campaign and the efforts at regime change. In previous eras, U.S. liberals might have criticized the unchecked use of executive power shown by the Obama administration. But such concerns are a thing of the past. With Libya, liberals have shown themselves to be perfectly comfortable with an “imperial presidency.”

    In addition, the intervention constitutes a setback for international cooperation aimed at curbing nuclear proliferation: NATO’s decision to overthrow Gaddafi after he had agreed to give up his nuclear weapons development program will surely dissuade other countries such as North Korea from repeating Gaddafi’s mistake. The significance of the intervention will thus extend far beyond Libya itself, and it is this larger class of implications that constitutes the most dangerous implication of the intervention. No one likes to think about the long-term consequences of policy actions, especially where “victory” is involved; but these long-term consequences will remain, all the same, and international security will be compromised as a result.

    Libya on the Ground

    Let us now turn to the implications of NATO’s victory for Libya and its people. …

    Like

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