The Justice Department has decided: it is perfectly acceptable for the president to send American troops into foreign military adventures without so much as consulting Congress, as long as he is carrying out the will of the United Nations.
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Just before Barack Obama’s speech on the budget on Wednesday, the White House revealed that American jets have continued to bomb Libya, after giving the impression this would end. Since the “hand-off,” U.S. troops have operated under NATO command. And some figures are beginning to catch on that there is no evidence the Libyan intervention prevented genocide.
With the evidence piling up, the Justice Department’s Office of Legal Counsel weighed in on Obama’s war-by-decree in Libya. Although figures as diverse as Ron Paul and Dennis Kucinich have declared the military adventure is grounds for impeachment, the OLC found that Obama acted within his “constitutional authority.” James M. Lindsay of the Council on Foreign Relations mentioned the report on the CFR’s blog last Friday. The OLC’s opinion states:
As we advised you prior to the commencement of military operations, we believe that, under these circumstances, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad, even without prior specific congressional approval.
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It states “a variety of national interests…alone or in combination, may justify use of military force by a President.” Among them is “maintaining the credibility of United Nations Security Council mandates” or “enforcing UNSC mandates,” citing such national mistakes as Haiti, Bosnia, and Somalia. Libya involved “the combination of at least two national interests…preserving regional stability and supporting the UNSC’s credibility and effectiveness,” and this “provided a sufficient basis for the President’s [sic. — government entities always capitalize their titles as though they were Oriental deities] exercise of his constitutional authority to to order the use of military force.”
This means two things: 1) Barack Obama had time to consult with the OLC, as well as the Arab League, NATO, and the United Nations Security Council before war, but not Congress; and 2) the OLC could not care less about the Founding Fathers’ interpretation of our founding document.
Indeed, the OLC says as much in its opinion. The president’s top legal advisers state their “understanding of the President’s constitutional authority reflects not only the express assignment of powers and responsibilities to the President and congress in the Constitution, but also, as noted, the ‘historical gloss’ placed on the Constitution by two centuries of practice.”
Under this scheme, violations of the Constitution become as important as the words of the Constitution.
The opinion cites legal precedents as hoary as…1941, offered by then-Attorney General Robert Jackson, later a New Deal judicial activist on the Supreme Court. To flesh out this “historical gloss,” the OLC refers its readers to Richard F. Grimmett’s “Instances of Use of United States Armed Forces Abroad, 1798-2008,” a virtually comprehensive list of military incursions overseas.
Upon reading the list, one is struck by the reality that the overwhelming majority of instances were instant retaliation for some attack upon American citizens. Instances of attack without congressional authorization are underwhelming. Grimmett’s list includes, e.g., an incident in 1831-2 in which a captain “investigated the capture of three American sealing vessels.” That’s it. Investigated. Another case is Commodore David Porter’s 1824 attack upon a Puerto Rican town, following which he “was later court-martialed for overstepping his powers.”
Apparently, even instances worthy of the brig “prove” the acceptability of ignoring the U.S. Constitution’s clear wording on which branch of government possesses war-making powers.
To buoy its argument, the OLC states the War Powers Resolution of 1973 is “proof” Congress has no interest in overseeing “more limited engagements.” The War Powers Act — which stands on dubious constitutional grounds — specifically limits the president’s ability to send U.S. troops into “hostilities”:
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. (Emphasis added.)
Clearly, intervention in a Muslim civil war does not meet those grounds.
The DoJ is not completely averse to the Constitution. It acknowledges “one possible constitutionally-based limit on this presidential authority to employ military force in defense of important national interests — a planned military engagement that constitutes a ‘war’ within the meaning of the Declaration of War Clause may require prior congressional authorization.” Possible? May? Even these weak, shifting, murky grounds are “satisfied only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” What if there is “substantial risk” for a short period? What if estimates are wrong and casualties force an escalation to full-blown war? We never get an answer to these questions.
Thus, the Attorney General’s boys find themselves in the odd position of arguing that the airborne destruction of an entire sovereign nation’s air force, the bombing of the leader’s compound, and a none-too-coded declaration from NATO leaders that they will push for regime change (“It is impossible to imagine a future for Libya with Qaddafi in power”) is not a war.
How waging an undeclared, unauthorized war on behalf on North African Muslims advances American interests is anyone’s guess. But it clearly cements the president’s role as a king-like figure tasked with carrying out the bidding of the United Nations, whether the people back home like it or not.