The Bipartisan Case Against U.S. Involvement in Libya

Of the ten members of Congress who on June 15 filed a lawsuit against the President for violating the War Powers Act, seven are Republicans and three are Democrats. Their case is simple: the President, they say, has acted against the Constitution.
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Has it been adequately noticed that bipartisanship, the goal so cherished by Barack Obama, has now at last emerged? President Obama himself has been the means of its appearance -- though not in the way that he envisaged. The stimulus to the bipartisan rally on behalf of everything that "unites us not divides us" has been Obama's assertion of extra-constitutional executive powers in the Libya War.

Of the ten members of Congress who on June 15 filed a lawsuit against the president for his failure to seek congressional approval for the Libya War, seven are Republicans and three are Democrats. Their case is simple. The president in Libya, they say, has acted against the Constitution, which vests in Congress the sole power of declaring war. He has also violated the central provision of the War Powers Act of 1973, which requires congressional authorization within 60 days of the introduction of U.S. forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances."

Dennis Kucinich and Ron Paul are accompanied in this action by Democrats Michael Capuano of Massachusetts and John Conyers of Michigan; and by Republicans Walter Jones and Howard Coble of North Carolina, Jimmy Duncan of Tennessee, Roscoe Bartlett of Maryland, Tim Johnson of Illinois, and Dan Burton of Indiana. Other lawmakers opposed to the Libya War, or clear in their demand for congressional authorization, include Senator Richard Lugar of Indiana and representatives Jerrold Nadler of New York, Rob Andrews of New Jersey, Jim McGovern of Massachusetts, and Eleanor Holmes Norton of DC.

Are the motives of some of these representatives political? Very likely. But no more so than the president's motives for joining forces with the leaders of the former empires of North Africa, the British and the French, in a bid to wrest control of an oil-rich country from a regional despot who poses no threat to America. Muammar Gaddafi gave up his nuclear weapons program eight years ago, and until the U.S. went to war against him in March, Gaddafi considered himself our loyal ally in the war against al-Qaeda.

In citing U.N. authorization and NATO auspices for a war dominated by American arms and manpower and funded by American dollars, Obama continues a pattern of displaced responsibility begun by President Truman in the Korean War. Truman sought and obtained U.N. authorization (General MacArthur's title in 1950-51 was Commander of United Nations Forces), but the world knew that Korea was an American war. Bill Clinton used the banner of collaborative assistance by NATO to license the eleven weeks of bombing that in spring 1999 shattered Yugoslavia and incidentally afforded a proving ground for advanced American weaponry.

Even George W. Bush was persuaded to sit still for a U.N. resolution, which he would cite (in the distant background) to support his bombing, invasion, and occupation of Iraq in March 2003. The October 2002 congressional authorization of war gave over to the president the final judgment whether Iraq had complied with U.N. weapons inspections and, if not, whether the failure to comply was a national threat. Thus Congress ceded to Bush the power to determine the necessity of war. A craven and irresponsible concession.

A pair of innovations in the U.N. run-up protocol, one by Bush and one by Obama, mark a particular trespass against the spirit and letter of the Constitution. Bush and Dick Cheney supported their case for the 2003 Iraq war by forged documents and rumors from discredited sources. That much, Lyndon Johnson had pioneered with the fabricated Tonkin Gulf incident and the Resolution that followed in 1964, yet Johnson's falsification of the facts was based anyway on a semblance of a theory: if South Vietnam went Communist, all of Southeast Asia would fall to Red China and World Communism would be tempted to launch an all-out war against the United States. The Bush-Cheney case offered a shadow of a semblance of a theory. It was founded on the pretense that Iraq, though its army, air force, and defense network were derisory by U.S. standards, might eventually become a nuclear threat of the gravest kind. An unsupported surmise that Saddam Hussein had an active nuclear weapons program was made the excuse for a war of aggression against an internationally non-threatening tyrant.

The high bar set by the Constitution for taking the country to war was lowered a long notch further by President Obama's circumvention of Congress on Libya. In the March 19 announcement of his decision, Obama stepped into one more war of choice, appealing, as he did so, to an even weaker standard of urgency than any of his predecessors. It has not been argued that the Libya War is a preemptive war against an imminent threat to the U.S., or a preventive war against a fast-increasing threat. It is called by its defenders a humanitarian intervention. Yet after the first few days, the firepower of NATO broke the bounds of any conceivable humanitarian and defensive purpose.

The state department legal adviser Harold H. Koh and the White House counsel Robert Bauer have argued that Obama has the legal right to circumvent Congress. As a New York Times story on June 16 paraphrased their view, the Libya War is not really a war because "there are no [U.S.] troops on the ground and Libyan forces are unable to exchange fire with them meaningfully." The official version of this rationale, in President Obama's June 15 letter to the Speaker of the House John Boehner, offers four reasons for supposing that the Libya War is not a war (numbered here for convenience): "U.S. operations do not involve [1] sustained fighting or [2] active exchanges of fire with hostile forces, nor do they involve [3] the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or [4] any significant chance of escalation into a conflict characterized by those factors."

In short, a war is not a war unless American troops fight for a long time, or against a dangerous enemy, or under serious threat of injury or death, or with the probability that an antiseptic intervention may become a protracted engagement that is risky in the ways listed above.

The state department and White House lawyers also assert [5] that U.S. forces are acting in rigorous conformity to the U.N. resolution that authorizes air power only to protect civilians. The last of these reasons ignores the fact that NATO has mounted full-scale air attacks on tanks, trucks and other mobile equipment, along with installations and military buildings of the Libyan army; and it fails to acknowledge the disproportionate American commitment within NATO. As for the four preceding reasons, Jason Linkins has summed up their legalistic peculiarity: "If forces from the United States aren't actually dying, it's not a war, never mind the fact that U.S. forces are, nevertheless, actively engaged in an attempt to kill people." By the same logic that says a one-sided air war is not a war, a president may launch hundreds of missiles against an enemy on his own initiative, so long as the targets have no means of retaliation.

How to account for the sophistry of this attempt to placate Congress by pretending that the Libya War is not a war? The Obama White House, it would seem, is creating an executive license for purely offensive wars, so long as no American casualties are incurred. An excellent Times story by Charlie Savage on June 18, "2 Top Lawyers Lost Argument on War Power," reveals that in adopting the cover-explanation of the White House counsel, Obama took the extraordinary step of rejecting the conclusions of the Pentagon general counsel Jeh C. Johnson and the acting head of the justice department's Office of Legal Counsel Caroline D. Krass. These authorities outside the White House informed the President that he ought to get approval from Congress, or halt the drone strikes as a proof that America was now confined to a supporting role. Probably Obama's reason for overriding them -- and the attorney general who agreed with them -- does not come from any worry about the Libya War. He could get congressional approval there if he asked for it.

Beyond Libya, President Obama wants to have the power to act unfettered by Congress in future commitments of U.S. arms across the Middle East and Asia. So the pretext-argument says, "Libya is not a real war," but the underlying argument is: "An unleashed president can't be challenged by Congress every time he decides to launch heavy shells, missiles and bunker-busters at a new enemy of choice. And there will be lots of occasions like that in the coming years." Of course, we have already witnessed a similar assertion of legality for executive actions in Pakistan and Yemen. The preferred euphemism for an unaccountable president is an "energetic executive." The euphemism for acting in defiance of the Constitution is "flexibility."

In Pakistan, in Yemen, and in Libya, President Obama has shown a predilection for air strikes that crush and raze military or strategic targets or kill designated individuals by unmanned drone and Cruise-missile firings. This includes, for example, the attempt to assassinate the Islamist demagogue and American citizen Anwar al-Awlaki, which took place just a week after the successful mission against Osama bin Laden. There have also been two recent attempts by NATO to assassinate Muammar Gaddafi by air strikes. But air strikes have long been the tool of choice among U.S. field commanders as well as the commander-in-chief. At the same time, they make the least reported element of our wars -- a point that Tom Engelhardt has stressed in a series of memorable articles. Allowing for the intensification of killing from the air, Obama's war policy stands in direct continuity with that of George W. Bush. Indeed, the Obama policy represents an advance on Bush in the normalization of war.

To how many wars have these two presidents committed the United States? Leaving aside the secret actions of intelligence operatives and special forces in Indonesia and elsewhere, our wars now number six: Afghanistan, Iraq, Somalia, Pakistan, Yemen, Libya. American engagement in the first three was the work of Bush and Cheney. The last three belong to Obama. He brags less than Bush and pontificates more. The result on the ground is the same.

Appropriately enough, a president who was careful to say once that he was not against wars but only against "a dumb war" has now been called to account by representatives who act with the conscience of the Constitution when they ask: Is President Obama alone permitted to judge whether a given war on the menu of possible wars is smart or dumb?

The bipartisan watch on the imperial presidency will be called isolationist by defenders of the status quo. But that term is prejudicial--a substitute for argument. It would be far less prejudicial to describe the Bush-Obama geopolitical strategy as imperialist. Anyway, the members of Congress who sued the president are rational critics of military intervention. Can we afford to give this policy one more pass for one more war and call it nothing worse than reckless?

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