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Responding to the Office of Legal Counsel's Positively Orwellian Rationale for Libyan War

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In the legal memo provided by the President's Office of Legal Counsel, the Administration argues that the President had the authority to attack Libya absent Congressional authorization because he determined it was in the national interest and because the U.S. is engaged in limited military operations that do not constitute a war.

The war in Libya is not in our national interest.   The claim that the U.S. had to act in Libya in order to maintain stability in the region -- "a vital U.S. interest" -- runs contrary to the history of U.S. military intervention in the region.   As evidenced by U.S. intervention in Afghanistan, Iraq and drone bombing campaigns in Pakistan, rather than maintain stability, U.S. military action in the region has unfortunately served to further instability. Occupations fuel insurgencies and close a circle of never-ending violence. Additionally, the doctrine that the U.S. has a responsibility to act militarily, without prior authorization from Congress, in the event of a threat to any of our friends in the world puts us on a path to permanent war and has no legal basis in the Constitution or the War Powers Act.

The Obama Administration has prosecuted a war that is "not a war." The assertion that U.S. military actions in Libya do not constitute war belies the significant use of military force in Libya.   The Administration's own Secretary of Defense, while testifying before Congress last month, admitted that enforcing a no-fly zone in Libya was an act of war: "A no-fly zone begins with an attack on Libya to destroy the air defenses." [1] The United States, thus far, has spent well over $550 million on the war in Libya, using at least 112 long-range Tomahawk cruise missiles, estimated to cost up to $1.5 million each, in the first day alone.   The U.S. also used Joint Direct Attack Munitions -- 2,000 pound bombs -- to bomb Libya.   The characterization of the use of force in Libya solely as a humanitarian intervention cannot hide the reality of what war is. The attempt to assert that this is not a war does violence to cognition and violence to the English language. It is positively Orwellian.

The Administration also claims that authority to use U.S. military force abroad was provided by United Nations Security Council Resolution (UNSCR) 1973, which authorized member states to "take all necessary measures" to protect Libyan civilians and to enforce a no-fly zone.   The Constitution does not provide an exception for the President to unilaterally decide to use military force abroad if an international body, such as the United Nations, provides him with one.   It is unequivocally clear, in Article 1, Section 8, that the power to authorize the use of military force or to declare war lies solely with Congress.

The law provides the President with the authority to use military force absent prior Congressional authorization only to repel sudden or imminent attack.   There was no threat of sudden or imminent attack to the United States from Libya.   President Obama himself recognized the constitutional limitations imposed on any U.S. President when, in an October 2008 interview, he stated that "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." [2]  

In the sophistry of the Office of Legal Counsel's memo, the Obama administration fails to justify what cannot be justified.   While the President has argued that the credibility of the United Nations (U.N.) was at stake if members of the Security Council did not act, it is actually the credibility of his administration and of our own democracy that is at stake.   Preserving the credibility of the U.N. has never been a reason to go to war. A plain reading of the U.S. Constitution explicitly places war powers in the hands of Congress.  

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In this flimsy attempt to justify military action in Libya, it appears as though the administration is taking scissors and scotch tape to the Constitution, cutting out sections they do not like, and replacing them with legal theory that is reminiscent of the now discredited theories (of a former administration) which were used to justify torture.  


[1]   Sanger, David E. and Shanker, Tom.   (2011, March 2).   "Gates Warns of Risks of No-Fly Zone."   The New York Times, online.   Accessible: http://www.nytimes.com/2011/03/03/world/africa/03military.html?pagewanted=1&_r=1.  

[2] Savage, Charlie.   (2007, December 20).   "Barack Obama's Q&A." The Boston Globe, online.   Accessible: http://www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/.  

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Dennis Kucinich is former US Congressman and two-time presidential candidate from Ohio who served 16 years in the U.S. House of Representatives. 

Visit his website at  KucinichAction

Follow him on Twitter at @Dennis_Kucinich

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There is only one just way to end the ongoing insa... by Philip Dennany on Friday, Apr 8, 2011 at 6:23:09 PM
It is disingenuouis to tolerate in a democrat pres... by Nick van Nes on Friday, Apr 8, 2011 at 9:02:16 PM
Aren't you being a bit disingenuous about Obama's ... by Mac McKinney on Friday, Apr 8, 2011 at 10:55:41 PM
Excellent and well researched response Mac. Nothi... by Doc McCoy on Saturday, Apr 9, 2011 at 11:17:52 AM
by this revolting spectacle of pro-war progressive... by terrilian on Saturday, Apr 9, 2011 at 7:26:21 PM
Really Terrilian? A shill for Big Oil? Is that why... by Mac McKinney on Saturday, Apr 9, 2011 at 11:16:18 PM
Quote;As a permanent member of the UN Security Cou... by Eddy Schmid on Sunday, Apr 10, 2011 at 1:36:22 AM
I am well aware that the US often ignores resoluti... by Mac McKinney on Sunday, Apr 10, 2011 at 2:00:58 AM
You throw out a lot of words, but avoid the key is... by Bugger on Sunday, Apr 10, 2011 at 9:26:51 AM
Missed your comment until now, but ponder this. No... by Mac McKinney on Monday, Apr 11, 2011 at 3:58:47 PM
The new Libyan gove... by John Smith on Saturday, Apr 9, 2011 at 4:59:51 AM
And, I guess, the new Libya won't be training and ... by Mac McKinney on Saturday, Apr 9, 2011 at 5:28:39 AM
Kill 'em all. ... by Ned Lud on Saturday, Apr 9, 2011 at 6:20:15 AM
with the United Nations and NATO almost provided j... by John Sanchez Jr. on Saturday, Apr 9, 2011 at 8:53:50 AM
As it happens, the President and Congress are chal... by Mark A. Goldman on Saturday, Apr 9, 2011 at 3:33:46 PM
That some people in the thread do their best to ac... by Mark Sashine on Saturday, Apr 9, 2011 at 4:30:27 PM
It may be time to stop pretending that we are a d... by Marika on Saturday, Apr 9, 2011 at 5:24:37 PM
I have heard that troops are deployed to Libya alr... by zephyr on Saturday, Apr 9, 2011 at 10:30:30 PM
Once again Dennis, your "Patriotic Empowerment" go... by Greg Campbell on Sunday, Apr 10, 2011 at 2:48:51 AM
So the same guys who say torture is good now provi... by conrad elledge on Sunday, Apr 10, 2011 at 12:58:53 PM