The checks and balances that underpin the federal government - the system by which each of the legislative, executive and judicial branches limit the power of the other two - are crucial to the continued success, however occasionally wobbly, of representative democracy in the United States.
Under the Constitution, war powers are divided between the President and Congress. Congress may declare war, raise and support military forces, control war funding and make laws necessary to carrying out armed conflict. The President, meanwhile, is commander-in-chief of the military, with the power to repel attacks against U.S. territory, responsibility for leading the armed forces, and, as with all legislative acts, the power to veto acts of Congress, including declarations of war.
This fundamental structure was bolstered by the War Powers Resolution of 1973, which was passed in order to further restrain the president from taking the United States without the agreement of the legislature. The Resolution requires the President to notify Congress within 48 hours of committing armed forces to military action, and prohibits military forces from remaining in combat for more than 60 days (allowing an additional 30 days for withdrawal) unless Congress had provided an authorization for the use of military force or a declaration of war.
And there's the rub. President Obama began providing military support to rebels in Libya fighting to overthrow Muammar Gadaffi well over two months ago, and while he duly informed Congress of this action, there has been no authorization for the use of military force or declaration or war from Capitol Hill since. In other words, Mr. Obama's 60 days are up. Congressman Dennis Kucinich, stymied in his attempt to advance a resolution in the House of Representatives demanding the president end his unconstitutional involvement of American forces in Libya, is leading nine other congressmen in suing Mr. Obama in federal court - along with Secretary of Defense Robert Gates - to end the U.S. presence in Libya.
Glenn Greenwald breaks down the ludicrous post-hoc legal contortions the White House is using to try and justify our continued involvement in The Illegal War in Libya, but while the jurisprudence surrounding armed conflict is indeed interesting, it this paragraph that is chillingly at the heart of the reasons why unilateral presidential war-making is of such concern:
It was equally clear from the start that this Orwellian-named "kinetic humanitarian action" was, in fact, a "war" in every sense, including the Constitutional sense, but that's especially undeniable now. While the President, in his after-the-fact speech justifying the war, pledged that "broadening our military mission to include regime change would be a mistake," it is now clear that is exactly what is happening. "Regime change" quickly became the explicit goal. NATO has repeatedly sought to kill Gadaffi with bombs; one attack killed his youngest son and three grandchildren and almost killed his whole family including his wife, forcing them to flee to Tunisia. If sending your armed forces and its AC-130s and drones to another country to attack that country's military and kill its leader isn't a "war," then nothing is.In my view, that is entirely correct, and while it may well be that there are very good reasons for supporting the rebellion against Libya's longtime despot, if they're not good enough to pass muster on the Hill, then, by law and by definition, they are not good enough to justify our continued military intervention.
Several years ago, Barack Obama at least purported to agree that constitutionally-unsupported military adventurism was beyond the pale. In a speech in August of 2007, then-candidate Obama laid out the principles by which he stated he would operate if he were elected to the Oval Office:
No more tracking citizens who do nothing more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. And it is not what is necessary to defeat the terrorists. The FISA court works. The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.He followed up those broad strokes a few months later, with specifics in a Q&A with Boston Globe reporter Charlie Savage wherein then-candidate Obama was unequivocal in his belief that Congress must ultimately authorize long-term conflict:
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.What we are seeing with Barack Obama in office is a man not only diametrically different on the subject of war powers from the man who campaigned for the presidency, but one who has enshrined the worst civil liberties abuses of his predecessor despite speaking out against them in the past, and a man who is now bringing an unprecendented number of prosecutions against government whistleblowers.
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. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.
To be clear, the problem is not with the Constitution, the law or with those who expose malfeasance, as hacktivist collective Anonymous warned NATO in a recent statement:
The government makes the law. This does not give them the right to break it. If the government was doing nothing underhand or illegal, there would be nothing "embarassing" about Wikileaks revelations, nor would there have been any scandal emanating from HBGary. The resulting scandals were not a result of Anonymous' or Wikileaks' revelations, they were the result of the CONTENT of those revelations. And responsibility for that content can be laid solely at the doorstep of policymakers who, like any corrupt entity, naively believed that they were above the law and that they would not be caught.It is unclear whether or not Barack Obama was lying about his consitutional convictions on the campaign trail; it is perhaps more likely that someone or something convinced him to abandon his stated principles for the heavy-handed law-breaking and anti-civil-liberties practices of George W. Bush. In any case, in the end, it simply doesn't matter; the president's job is not to "protect" us, but to uphold the Constitution - as he promised to do when he was sworn in - and even the administration's top lawyers have advised the President that he is violating the law with regard to Libya.
By continuing to maintain American military involvement in Libya without the approval of Congress, Mr. Obama is arrogating powers to himself that the foundational laws of this country do not grant him, violating his oath of office, and continuing the distractions that keep us from addressing the corruption and class warfare that continues to turn the once-proud United States into a banana republic kleptocracy for the benefit of a few.
Senator John McCain today criticized the field of 2012 Republican presidential candidates for what he termed their "isolationism" in not strongly supporting involvement in Libya. Bulletin to the senior senator from Arizona: if you want America to continue its intervention in Libya, get a declaration of war or an authorization for the use of military force. We've had enough conflict without end, and so have the troops: