The Constitutionality of what President Obama is currently doing in Libya is explained clearly in an article written by Glenn Greenwald.
I highly recommend everyone read it.
Salon.com Glenn Greenwald
Back in January, 2006, the Bush Justice Department released a 42-page memo arguing that the President had the power to ignore Congressional restrictions on domestic eavesdropping, such as those imposed by FISA (the 30-year-old law that made it a felony to do exactly what Bush got caught doing: eavesdropping on the communications of Americans without warrants). That occurred roughly 3 months after I began blogging, and -- to my embarrassment now -- I was actually shocked by the brazen radicalism and extremism expressed in that Memo. It literally argued that Congress had no power to constrain the President in any way when it came to national security matters and protecting the nation.
To advance this defense, Bush lawyers hailed what they called "the President's role as sole organ for the Nation in foreign affairs"; said the President’s war power inherently as "Commander-in-Chief" under Article II "includes all that is necessary and proper for carrying these powers into execution"; favorably cited an argument made by Attorney General Black during the Civil War that statutes restricting the President's actions relating to war "could probably be read as simply providing 'a recommendation' that the President could decline to follow at his discretion"; and, as a result of all that, Congress "was pressing or even exceeding constitutional limits" when it attempted to regulate how the President could eavesdrop on Americans. As a result, the Bush memo argued, the President had the power to ignore the law because FISA, to the extent it purported to restrict the President's war powers, "would be unconstitutional as applied in the context of this Congressionally authorized armed conflict."
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That claim -- that the President and he alone possesses all powers relating to war under the "Commander-in-Chief" clause of Article II -- became the cornerstone of Bush's "ideology of lawlessness." In a post that same month defining that ideology, I argued that this lawlessness was grounded in the September 25, 2001, War Powers memo by John Yoo, which infamously concluded as follows:
In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.
That was the heart and soul of Bush lawlessness: no "statute can place any limits on the President's determinations" as "these decisions, under our Constitution, are for the President alone to make."
Yesterday, Hillary Clinton told the House of Representatives that "the White House would forge ahead with military action in Libya even if Congress passed a resolution constraining the mission." As TPM put it: "the administration would ignore any and all attempts by Congress to shackle President Obama's power as commander in chief to make military and wartime decisions," as such attempts would constitute "an unconstitutional encroachment on executive power." As Democratic Rep. Brad Sherman noted, Clinton was not relying on the War Powers Resolution of 1973 (WPR); to the contrary, her position is that the Obama administration has the power to wage war in violation even of the permissive dictates of that Resolution. And, of course, the Obama administration has indeed involved the U.S. in a major, risky war, in a country that has neither attacked us nor threatened to, without even a pretense of Congressional approval or any form of democratic consent. Whether the U.S. should go to war is a decision, they obviously believe, "for the President alone to make."
Initially, I defy anyone to identify any differences between the administration's view of its own authority -- that it has the right to ignore Congressional restrictions on its war powers -- and the crux of Bush radicalism as expressed in the once-controversial memos by John Yoo and the Bush DOJ. There is none. That's why Yoo went to The Wall Street Journal to lavish praise on Obama's new war power theory: because it's Yoo's theory (as I was finishing this post, I saw that Adam Serwer makes a similar point today). If anything, one could argue that Yoo's theory of unilateral war-making was more reasonable, as it was at least tied to an actual attack on the U.S.: the 9/11 attacks. Here, the Obama administration is arrogating unto the President the unilateral, unrestrained right to start wars in all circumstances, whether or not the U.S. is attacked.
But what Clinton's stated view really harkens back to is the Iran-contra scandal, when the Reagan administration funded the Nicaraguan contras despite an express Congressional prohibition on doing so, and then took the position -- when exposed -- that Congress has no power to restrict its national security decisions. That position was pioneered in 1987 by then GOP Rep. Dick Cheney and his longtime aide David Addington, who wrote a dissenting report to the finding of the Iran-contra committee that the administration's funding of the contras violated the law. As Charlie Savage detailed in his book, Takeover, Cheney insisted that Congress lacked the power to restrict the President's national security power in any way -- i.e., that the prohibition on funding the contras was constitutionally null and void -- and it was this theory of Presidential Omnipotence which laid the groundwork for Bush 43's imperial presidency:
Cheney has been on a thirty-year quest to implement his views of unfettered executive power For example, when it was revealed in 2005 that the Bush administration had been illegally spying on Americans, Cheney responded: "If you want to understand why this program is legal…go back and read my Iran-Contra report." In that report -- authored in 1987 -- Cheney and aide David Addington defended President Reagan by claiming it was "unconstitutional for Congress to pass laws intruding" on the "commander in chief."
Isn't that bolded part -- the self-proclaimed crux of Cheneyite executive power radicalism -- exactly what Hillary Clinton asserted yesterday on behalf of the Obama administration to justify the unauthorized war in Libya? Yes, it is.
The arguments raised to justify the Obama view of his own powers are every bit as frivolous as they were during the Bush years. Many claim that the War Powers Resolution of 1973 allows a President to fight wars for 60 days without Congressional approval, but (a) the Obama administration is taking the position that not even the WPR can constrain the President, and (b) 1541(c) of that Resolution explicitly states that the war-making rights conferred by the statute apply only to a declaration of war, specific statutory authority, or "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." Plainly, none of those circumstances prevail here. That's why the Obama administration has to argue that it is empowered to ignore the WPR: because nothing in it permits the commencement of a war without Congressional approval in these circumstances; to the contrary, it makes clear that he has no such authority in this case (just read 1541(c) if you have any doubts about that).
Then there's the notion that Presidents in the past have started similar wars without Congressional approval. That's certainly true, but so what? The fact that an act is commonplace isn't a defense or justification. That "defense" was also a common refrain of Bush followers to justify their leader's chronic unconstitutional acts and other forms of law-breaking: Lincoln suspended habeas corpus and FDR interned Japanese-Americans, so why are you upset that Bush is acting outside the law? The pervasiveness of this form of thought underscores the dangers of learned acquiescence: once a government engages long enough or pervasively enough in a certain form of criminality or corruption, the citizenry is trained to accept it and collectively ceases to resist it, even learns to embrace it. What Obama is doing in Libya is either lawful or it isn't on its own terms; whether other Presidents in the past have acted similarly (and they have) is irrelevant.
Then there's the claim that the President, as "Commander-in-Chief" under Article II, is vested by the Constitution with the unilateral power to make decisions about America's national security. Leave aside the fact that this premise was the crux of the Bush/Cheney worldview, one which every Good Democrat and Liberal vehemently condemned until recently. Further leave aside the fact that both Obama and Clinton as Senators and presidential candidates insisted exactly the opposite when they specifically argued that Congress could legally require Bush to obtain Congressional approval before bombing Iran and generally that Presidents have no power to start wars without a vote from Congress. It was true during the Bush years and it is true now that this is an absolute distortion of the "Commander-in-Chief" power of Article II.