When a national television program this week needed to find a spokesperson for the right of presidents to launch wars without congressional authorization, it turned -- to the great shame of us University of Virginia alumni -- to Robert Turner. He is the co-founder of the University of Virginia's Center for National Security Law.
Turner worked as an attorney in the Reagan White House and behaves accordingly. His center is directed by John Norton Moore who unsuccessfully defended the United States before the International Court of Justice in 1984, the court ruling that the United States had violated international law by supporting Contra guerrillas in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. Then in 1991, Moore was legal advisor to the Kuwaiti ambassador to the United States, whose daughter was trained by a D.C. public relations firm to lie to Congress about babies being taken out of incubators. Moore supported the later Iraq War as well. The rest of the Center's personnel is a who's who list of war facilitators with blood up to their elbows.
Turner spoke from the satellite TV hookup at UVA on the "Democracy Now!" program on Thursday, in a debate with Congressman Dennis Kucinich moderated by the show's host, Amy Goodman. Kucinich and nine other congress members sued President Obama over the Libya War on Wednesday. The President sent Congress a report claiming the war was legal on Wednesday. The evidence suggests otherwise.
Turner's first utterance on Thursday's program was that the Libya War is not a war. He claimed to be backing President Obama's position. If the War Powers Resolution were constitutional, Turner argued, it would not apply, because this war is not actually a war. Turner then focused on citing individuals who believe the War Powers Resolution is unconstitutional. But that is for a court to decide. And that is not Obama's position. Obama's report specifically denies claiming that the War Power's Resolution is unconstitutional. Instead, Obama claims it does not apply. But he can't claim, as Turner does, that it doesn't apply because the Libya War is not a war.
The War Powers Resolution, in actual fact, forbids unconstitutional (presidential) wars unless the United States is attacked. But even ignoring that fact, as is the custom, the Resolution says right at the top:
"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 judgment 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."
Anything from imminent involvement in hostilities to hostilities is covered. The War Powers Resolution is very clearly not about wars, as some category of action larger than mere hostilities. Obama, however, goes beyond Turner and claims that the Libya War doesn't even amount to hostilities. But that, too, is an impossible claim. The passage above does not leave a gap with which to exclude bombing people's homes in a non-hostile manner with non-combat troops as part of an overseas contingency operation. Any warlike action counts as hostilities.
Congresswoman Lynn Woolsey remarked on Wednesday: "To say that our aggressive bombing of Libya does not rise to the level of 'hostilities' flies in the face of common sense and is an insult to the intelligence of the American people."
Congressman Kucinich asked Turner, if 2,000 missions were flown over the United States and many of those missions dropped bombs, would that be an act of war?
Turner did not answer.
Goodman later repeated the question to him.
Again, he did not answer.
Turner claimed that the UN Charter obliges the United States to fight this war. However, Kucinich pointed out that a treaty cannot trump Article I of the Constitution, and Turner agreed. He merely disagreed as to what Article I said, and refused to concede that it has been clarified by the War Powers Resolution.
In addition, it is far from clear that the UN Charter actually permits, much less requires, this war. As Marjorie Cohn has argued, the UN Charter does not allow the use of force for humanitarian interventions. The Responsibility to Protect doctrine found in the General Assembly's Outcome Document of the 2005 World Summit is the source of this doctrine, but not law or treaty, and even that doctrine defers to Chapters VI and VIII of the Charter, wherein states are required to use "every effort to achieve pacific settlement." This was not done and is not being done in Libya. Overtures of peace are being rejected out of hand. And UNSC Resolution 1973, which is being used to excuse the war, does not authorize warfare, but rather a cease-fire.
As Turner was losing Thursday's televised debate, he began to argue that holding such debates on ending wars -- and not the wars themselves -- endangers U.S. troops.