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Opinion: Obama is Breaking the Law in Libya

Saturday, June 18, 2011 - 12:00 AM

Libyan anti-Kadhafi fighters stand guard on a desert road some 30 kilometers before the eastern town of Brega on March 31, 2011. (ARIS MESSINIS/AFP/Getty Images/Getty)

I got an email from an old political friend of mine the other day. He’s a moderate Republican, and as much as he is wont to rant against Democrats, he’s not usually one to break out with really extreme hyperbole.

The email was in regards to president Obama’s actions, or more accurately his lack of certain actions, on Libya. The “I” word came up (impeachment), but my usual reaction to that word being used by partisans (rolling my eyes) stopped about two-thirds of the way through. I paused, then decided to do what the Obama administration seems to not have bothered to do... actually read the War Powers Resolution.

Before I go on, I have to say that I am very much in support of our military action in Libya, and the scope of which we are involved. This is not a back door argument for ending our involvement. I hope the president does his job, follows the law, gets proper permission from Congress and the mission there succeeds.

That being said, what the president is doing is very clearly illegal. I don’t agree with extremists like Dennis Kucinish and Ron Paul often, but they and seven other lawmakers are right on the money in the lawsuit they are bringing against the Obama administration. The administration’s defense boils down to saying that the military action in Libya does not constitute war because we don’t have boots on the ground. But this is not even close to what the War Powers Resolution says.

The first “War Powers Act” came in 1941, greatly expanding the powers of the executive branch in response to the Japanese attack on Pearl Harbor. After WWII, the Korean War, and Vietnam, Congress decided it was time to reassert its constitutional rights. The “War Powers Resolution” was passed in 1973, making it the law of the land that the president had get permission from the legislative branch (as it says in the constitution) when we engage in extended military actions. This resolution is what people are referring to when they say “War Powers Act."

What the resolution actually says in regards to the purpose of the law is as follows:

It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

It goes on to spell out the cases where it is within the powers of the executive branch to put our military to use:

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.

Notice that there is no mention of there needing to be boots on the ground or soldiers in harm's way for the act to apply. It very clearly states that it applies when the armed forces of our country are involved in situations of hostility. To say that this is not the case in Libya...it's right up there with the Bill Clinton classic, “It depends on what the meaning of the word 'is' is.”

The more you read of the resolution, the clearer it gets that the Obama administration is breaking the law. President Obama has claimed that he does not have to explain himself to Congress, but the War Powers Resolution leaves no wiggle room at all for this.

Just a few lines down from the sections quoted above, it says that the president must report to Congress with a certain set of explanations in the absence of a declaration of war, and if our military is introduced into "the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces"

Are we using our military power in the airspace and waters of a foreign nation? Yes.

Are our actions only supply, repair or training missions? No. We are bombing the Libyan military, among other targets.

Is Barack Obama breaking the law? Yes, without a doubt.

There’s more. What about this sixty-day limit that Congress is going on about? They say the administration needs their approval within sixty days of initiation of the use of our military. We’ve already established that we are, in fact, using the military in a way that the War Powers Resolution applies to. This is what the resolution has to say about the time frame:

Within sixty calendar days after a report is submitted or is required to be submitted...the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States.

Again, the administration is clearly breaking the law.

This plainly states that military action must stop unless war has been officially declared, congress has extended the permission another sixty days, or Congress cannot meet because it has been attacked. None of those things have occurred.

Military action, as defined by the sections quoted above, began on March 19th, when our air forces began bombing Libyan army positions and personnel. As of June 17th, if you don’t count the day action began, we have gone 89 days since the outset of military action in Libya.

Sitting behind the big desk in the Oval Office does not make you above the law. The administration needs to fulfill its reporting obligations now, and get permission from Congress for continued action in Libya. There are no “or ____” options here. President Obama has been breaking the law, and violating the constitutional limits on executive power, for 29 days.

I can’t speak to whether this is an offense worthy of impeachment or not. There are no set rules as to what Congress should deem impeachable. But I do think that this is far worse than a president lying about an affair with an intern.

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Comments [2]

Jack Jackson from Central New Jersey

Does the War Powers Resolution apply to actions taken under previously approved treaties? If so, then what use is the original approval of the treaty? The action in
Libya was approved by UN and NATO. What more approval should the President need.

Jul. 11 2011 11:34 AM
Harrison Bergeron from Fair Lawn NJ

Solomon,
I don't know whether to laugh or cry about this truly important, truly constitutional issue. Nobody has commented on this, either here or in Stephen Reader's post "Will Libya Raise the Bar ...". Yet there was so much activity regarding a middle-aged man conducting himself as a teenage boy on Twitter, over which that guy resigned from his job.

Jun. 19 2011 10:00 AM

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