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Is President Obama’s Attack on Gaddafi's Forces In Libya Unconstitutional?

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On March 19, military forces from the United States, France, and Great Britain began to enforce U.N. Security Council Resolution 1973, which obama libyacalled for the establishment of a no-fly zone over Libya and authorized the countries involved in enforcing the zone to “take all necessary measures” to protect civilians and “civilian-populated areas" under threat of attack.
 
In order to secure this no-fly zone, Libyan anti-aircraft weapons had to be disabled.

Consequently, more than 112 Tomahawk cruise missiles struck over 20 targets inside Libya on that day in the opening phase of an international military operation that was aimed at stopping attacks led by Libyan leader Muammar Gaddafi.

These actions occurred without President Obama initially notifying Congress or seeking their approval.

Which raises the question: Is it Congress or the president that has the power to authorize military action?

The answer is that, to some extent, they both claim it. The Constitution, in Article I, Section 8, explicitly states, "The Congress shall have Power To...declare War." But in Article II, Section 2, the Constitution says, "The president shall be Commander-in-Chief of the Army and Navy of the United States." So while only Congress can technically declare war, the president is in charge of the military - and can decide when and where it is deployed.

The Bipartisan Charges Against Obama

Immediately after taking such action, Obama has faced scathing criticism from members of both sides of the aisle who suggest that Obama’s actions are unconstitutional.

The most vocal of these critics have been Obama's fellow Democrats. Rep. Dennis Kucinich (D-Ohio) is leading the charge, saying that putting members of the Air Force and Navy in harm's way is "a grave decision that cannot be made by the president alone." Kucinich said Obama violated the Constitution by failing to seek congressional approval, and that "would appear on its face to be an impeachable offense.

Republicans have opposed this action, too, on constitutional merits. “Only Congress has the authority to declare war”,  says Rep. Ron Paul (R-Texas), “and firing cruise missiles and dropping bombs on Muammar Gaddafi's forces is clearly "an act of war." "The no-fly zone is unconstitutional because Congress has not authorized it," he says.

Even the far-left and many celebrities have made similar charges. Former Green Party presidential candidate  Ralph Nader is calling Obama a "war criminal." Liberal filmmaker Michael Moore says Obama is a hypocrite, and should return his Nobel Peace Prize.

Numerous columnists have claimed that Obama has violated the War Powers Act of 1973, a controversial law that limits the President’s war making authority that was passed despite President Nixon’s veto. The War Powers Act requires the President to inform Congress of military matters and puts limits on the ability of the President to send American troops into combat areas without Congressional approval.

Under the act, the President can only send combat troops into battle or into areas where ''imminent'' hostilities are likely, for 60 days without either a declaration of war by Congress or a specific Congressional mandate.

Finally, even Senator Barack Obama would have been against such action in Libya--

"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."

So said constitutional scholar and Senator Barack Obama in December 2007 – the same man who, last weekend, ordered U.S. air and missile strikes on Libya without any authorization from Congress.

More Problems with Obama’s Actions

I agree with many of Obama’s critics with our intervention into Libya. I agree with Senator John McCain that Obama waited too long before taking action, allowing the momentum of the conflict to shift from the resistance to the Gaddafi’s forces two weeks ago.

It is unclear how, on balance, a third war in a Muslim country helps our foreign policy goals. It is uncertain that the intervention will produce a regime more to our liking than Gaddafi's. We are not even sure who are Gaddafi’s opponents that we are helping

It is hard to justify military action in Libya while the United States does not use military force in the face of brutal crackdowns by allies elsewhere in the Middle East. For instance, Syria and Yemen are experiencing revolts against their governments. Yemeni President Ali Abdullah Saleh vowed to defend his regime “with every drop of blood.” Might these countries be attacked next?

And it was especially unwise not to explain this action to the American people in advance or to better consult with and seek formal authorization, or at least political support, from Congress.

Why President Obama’s Actions Are Constitutional

Although I agree with many of President Obama’s critics on his Libya intervention, I do disagree on one major point of many critics-- I do not believe that the military action in Libya is unconstitutional.

First there is a debate whether or not the War Powers Act, passed as a direct result of the Viet Nam War, is even constitutional. Regardless, most presidents have tried to ignore the War Powers Act, and have seen it as an infringement of the powers of the executive branch. That’s why President Nixon attempted to veto the act.

When criticized, presidents have typically cited Article II, Section 2 of the Constitution, which stipulates, "The president shall be Commander-in-Chief of the Army and Navy of the United States."

President Reagan ignored the act when he undertook military action in Grenada, Lebanon, Libya, Central America, and the Persian Gulf. President Bush said the act didn't apply to military engagements in Panama, and initially, the Gulf War. President Clinton did much the same with regard to military deployments in Haiti, Somalia, Bosnia, and Iraq.

And President Obama has fulfilled his obligations under the War Powers Act, anyway.

The President sent his notification to Congress regarding the Libya situation in accordance with the War Powers Act a few days ago. The law requires such a notification within 48 hours of commencing military actions.

Critics complained the President was not complying with the War Powers Act because he had not notified Congress. But, of course, the criticism was premature and in this case unwarranted since the 48-hour time period had not yet elapsed.

The Constitution in Article I, like many of Obama’s critics cite, gives the power to Congress to declare war. But declaring war and making war are two different things. Consider what it means to declare war-- One way to look at it is to take it as the formal declaration of war. Alexander Hamilton clarified this when he said that the President, while lacking the power to declare war, would have "the direction of war when authorized."

On this view, Obama would seem to be acting in a legitimate way. As noted above, he has not issued a declaration of war. Rather, he has simply launched attacks within the territory of another sovereign nation-which has become something of a tradition among American presidents.

For those who feel that Obama’s actions violate checks and balances, one only needs to be reminded that Congress could ultimately stop the military action against Libya if it wanted to – by defunding the war effort. However, neither Speaker of the House John Boehner, nor Senate Majority Leader Harry Reid has shown any indication they want to do so.

Final Thoughts
U.S. military intervention makes sense when a country threatens us directly or imperils regional stability. Humanitarian rescue missions make sense when we can help stop genocide. This conflict is neither.

We are engaging in what is essentially a civil war in a tribal society, knowing next to nothing about the rebels whose side we're on. We don’t even have an exit plan or even an idea when the mission will be accomplished—are we ultimately trying to remove Gaddafi or just protecting Libya’s citizens?

This conflict is wrong on so many levels.

But the conflict is constitutional.  I don't like what Obama did, but I can't fault his authority on this blunder.

Contact Erik Uliasz at euliasz@philly2philly.com

 

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