Libya action another affront to the Constitution?

Posted on 2011-03-21 19:39

President Obama’s war in Libya, even if it is moral, prudent and legally authorized under international law by the Security Council, is plainly unconstitutional

Michael Lind lays out the case pretty well in today's Salon article for why he thinks Obama's order to assist in the UN action against Ghadafi is illegal. On the one hand I really believe it would be the height of hypocrisy for America to refuse to assist any movement of people living under an authoritarian regime to overthrow their oppressors when our very existence as a nation is the direct result of French assistance to us during our struggle against the English in our own War for Independence. It seems especially hypocritical considering the sheer volume of rhetoric we've thrown around for 40 years concerning democracy while silently propping up the very dictators we're asked to remove now. But on the other hand, if the president doesn't have the authority to order military actions (even if requested by allied UN nations and required by UN treaty obligations), then he doesn't have it. If an act of Congress is required to authorize military action in support of a UN resolution under article 42 then Congress should be asked to authorize it. I understand the time-sensitive nature of the situation, and that swift action may have been required, but certainly there is always enough time to obey the law?

My confusion is really over whether it is better to lie to Congress and fabricate evidence for a connection between our enemies and Iraq so that Congress will authorize a desired military action as occurred under Bush just a few short years ago or rather to ignore the Constitution, bypass Congress entirely and order a desired military action unilaterally? The former seems like treasonable offense while the latter makes our leader no better than the military thugs he proposes to overthrow.

James Madison, on the (then) new Constitution, from The Federalist, 1788.

"In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature and not to the executive department. Beside the objection to such a mixture of heterogeneous powers the trust and the temptation would be too great for any one man not such as nature may offer as the prodigy of many centuries but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created and it is the executive will which is to direct it. In war the public treasures are to be unlocked and it is the executive hand which is to dispense them. In war the honours and emoluments of office are to be multiplied and it is the executive patronage under which they are to be enjoyed. It is in war finally that laurels are to be gathered and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace. Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war hence it is the practice of all states in proportion as they are free to disarm this propensity of its influence."

update Apr 4, 2011: The President recognizes that the Constitution does not give him the right to attack another sovereign nation (even if he has really good reasons for doing so, like preventing a "flood of refugees" into fragile Egypt and Tunisa, though I wonder how many would have been left alive to flee there at all). In a Dec. 20, 2007 interview with the Boston Globe, reporter Charlie Savage asked then Senator Obama under what circumstances the president would have the constitutional authority to bomb Iran without first seeking authorization from Congress.

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. As Commander-in-Chief, the President does have a duty to protect and defend the United States,” Obama continued. “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.