On June 15th, 2011-- the same day that the media announced that 10 congressmen were suing President Obama over his violation of the War Powers Act while executing his war in Libya-- the White House released a report attempting to justify why congressional approval was not needed in order to carry it out. Through a text link ABC News made an unauthorized copy of that report available. That report can be viewed HERE.
In the following article I will provide a summary of the 32 page PDF report and rebuttals to the White House's key arguments. Though other parts of the report will be covered, the most important topics in the report relating to the President's constitutional authority for single-handedly committing the United States to another war are: "U.S. Support to NATO Mission" on page 11, "Consequences of U.S. Not Participating in NATO Operations" on page 13, and "Legal Analysis and Administration Support for Bipartisan Resolution" on page 25.
Other issues such as cost, humanitarian aid, and the White House's perceived success of NATO's mission do not relate to the President's legal authority to take the U.S. into war and are included in the White House's report only to 1) blur the clear lines of constitutional law by making emotional arguments and 2) divert the focus of the argument by trying to assure the U.S. Congress that the money spent for the U.S. military operation in Libya doesn't cost too much (in the White House's own opinion, of course). On that last point, the question of taking a country into war isn't only one of financial cost, but also of gambling with national security, the lives of U.S. personal, and whether or not there is a legitimate justification for destroying property and committing murder in the name of the country, which causes blowback and further hostility overseas against the United States that will undoubtedly resonate for years. Regardless, neither point has anything to do with the legality of the President not getting permission from Congress before going to war or ignoring the War Powers Resolution deadline.
The report also includes a "Contents of Classified Annex" at the end listing topics that don't address the legal issues mentioned above regarding constitutional authority, and can't be assessed in order to address the imminent threat question because the text of these topics haven't been made available, though the topic titles appear to have nothing to do with imminent threats to the U.S., only logistical issues involved in the execution of the Libyan war. Nowhere else are any of the topics listed cited in the White House's arguments trying to justify the President's actions in Libya. If there were an actual imminent threat forcing the President to take the U.S. to war listed in this annex, he would need to cite it openly in his argument to the Congress and to the American people.
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The text of the report starts on page 2--"Overview of United States Activities in Libya"
It begins:
"In his address to the nation on Libya on March 28, 2011, President Obama presented a comprehensive explanation for why he authorized military action as part of an international coalition to protect the people of Libya and to enforce U.N. Security Council Resolution (UNSCR) 1973."
(UNSCR) 1973 is a U.N. resolution passed in March allowing the Security Council to enforce a no-fly zone over Libya. The establishment of a no-fly zone is an aerial blockade, which is an act of war. Throughout the entire report the only specific legislative acts cited by the White House justifying his actions are U.N. resolutions. (UNSCR 1973, and UNSCR 1970) The President believes that a mandate from the U.N. trumps U.S. constitutional requirements for him get permission from Congress to declare war, and the 60 day limit set down for him to commit troops overseas without congressional approval outlined in the War Powers Resolution. In this belief the President is dead wrong.
In Chapter VII, Article 43 of the U.N. charter titled "ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION" describing the U.N. Security Council's legal authority and process for waging war, it states:
"The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes."
The law can't be any clearer--U.N. mandates do not trump the U.S. Constitution or the constitutions of any of the individual member nations with respect to their participation in overseas conflict.
Throughout page 2 the report rehashes what led to the conflict in Libya. One important point to note is this appeal:
"In contrast, the war in Bosnia raged for nearly two years before the first NATO military operations took place, and three years before NATO began ground strikes to protect the civilian population."
Referencing Bosnia as a historical precedent for why the President couldn't wait for approval from Congress is not a legal argument when it doesn't pertain to the immediate security of the United States. On top of that, since the White House was able to put together this formal report to defend itself so shortly after it found out that the President was being sued, there is no reason to believe that a similarly styled request for permission from Congress couldn't have been presented and voted on in an emergency session before the bombs started falling on Libya if the President felt there was such an important need to go to war.
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