Waging Another Unconstitutional War

Guest Perspective By Ralph Nader
The meticulous Harvard Law Review editors should be rolling over in their footnotes. The recidivist violations of constitutional and statutory requirements by their celebrated predecessor at that journal – Barack Obama has reached Orwellian dimensions in the war against Libya.



You see, the widespread daily bombing of Libya, the strict naval blockade of Muammar Gadhafi-controlled Libya, the destruction of Gadhafi's family compound and tent encampment in the desert--killing his son and three grandchildren--and the deployment of special forces inside Libya is not a "War." It is in the Obama White House's evasive nomenclature just a "time-limited, scope-limited military action" Can you find that phrase in the Constitution?

If Obama used the word "War," he would have a more difficult time explaining to Congress and the American people (three out of four oppose this war) why he did not (1) seek a declaration of war under Article I, section 8, clause 11 of the Constitution, or (2) seek Congressional authorization for appropriated funds to further the war with our NATO co-warriors, or (3) comply with the deadlines of the War Powers Resolution. He threw all three lawful restraints on his Presidential unilateralism overboard.

So, in the invidious tradition of George W. Bush and his indentured confessor, Justice Department lawyer, John Yoo, now comfortably ensconced on the law faculty of the University of California Berkeley, Mr. Obama is blithely claiming as authority for taking our country into another war "the inherent powers of the President under Article II of the Constitution." This wouldn't pass the laugh test by Jefferson, Madison, Franklin Mason or even Hamilton. James Madison believed placing the war-declaring power in the exclusive hands of Congress was the most significant achievement during the convention in Philadelphia that summer of 1787. No more King George substitutes for America's future, they demanded.

Note that Libya did not attack the U.S. or its appendages, and did not attack a member of NATO. Obama admits these points. Libya's trusting government sovereign fund even left $37 billion in the U.S. which Obama promptly froze. Lacking even the prevaricatory pretenses for Bush's illegal invasion of Iraq in 2003, Obama and Hillary Clinton now say the U.S. is militarily involved "to protect our interests and advance our values" in the region and, of course, to protect the "universal rights" of the Libyan people. (Opportunities abound for this Obama doctrine around the world from the Congo to Syria, to Burma, to occupied Palestine and many other areas.)

Desperately seeking legitimacy, Mr. Obama cites the UN resolution, NATO, and the Arab League instead of seeking it from Congress. For all treaties with foreign countries, including the UN Charter, are trumped by the U.S. Constitution (Reid v. Covert, 354 U.S. 1 (1957)). As a former teacher of constitutional law, the President knows this basic principle but then, as Lord Acton declared: "Power corrupts and absolute power corrupts absolutely."

Congress, rendered a rubber stamp by President George W. Bush, is bestirring itself. On June 3, 2011, the House of Representatives passed H.R. Res 292 declaring that the President shall not deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya. On this matter, Obama pleads state secrets.

On June 16, 2011, ten members of the House – five conservative Republicans (including Walter B. Jones (Rep. N.C.) and Ron Paul (Rep. Texas) and five Democrats (including Dennis Kucinich (Dem. Ohio) and John Conyers (Dem. Mich.) filed suit against President Obama in federal district court for an order declaring the U.S. war in Libya "without a declaration of Congress with the use of funds never approved for such a war" to be unconstitutional. Given past judicial decisions declaring members of Congress to have "no standing to sue" on what they call "political matters," this suit is facing an uphill barrier.

Congress has appropriated no money for this war, already costing nearly a billion dollars, nor has the lawless Obama asked for it because he knows there will be strong bi-partisan resistance.

So where is the Congress to go but to the courts to decide this internal, domestic issue affecting the separation of powers provoked by a clearly lawless President? The degraded, politicized, formerly professional, Office of Legal Counsel is a sleazy apologist for presidential overreaching for over two decades.

The expanding immunities of the Executive branch, now increasingly embracing the military contractors of the corporate state, is destroying the remaining pretensions that we are a nation under law. When he was inaugurated as President in January 2009, President Obama said he wanted his Administration to be known as one of "transparency and the rule of law." You'll recall during his 2008 campaign he trumpeted that he would obey the Constitution, inferring the the Republican regime was trampling the Rule of Law.

Indeed in 2007, then Senator Barack Obama stated that "the president does not have any 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." Vice President Biden was even more vehement on this issue. And Secretary of Defense Robert Gates originally opposed the attack on Libya before falling in line.

Gadhafi's dictatorship is a brutal one. Civil wars are brutal. People are dying and suffering. The country is being torn apart. Obama and NATO are not adequately testing offers for a truce and supervised elections. Top level officials are defecting from Gadhafi and hoping to help lead any successor government.

Regimes brutalize their people whether as dictatorships, authoritarian rulers, connected with dominant oligarchies, or through racial, religious or other sectarian repressions. Is the U.S., mired in deep recession, debt and its own kleptocracy, going to continue to police the world with bases, interventions, subversions or occupation?

The cause of human rights everywhere, needs a permanent, well-quipped professional United Nations peace-keeping force and effective international courts to prevent mass massacres and mass brutalities. That time is not near but it should be at the top of the agenda of civilized nations.

The U.S., as the number one military superpower, provoking antagonisms by its penchant for control throughout the world, should not imperially advance our empire. It is that belief which is bringing Right and Left together, not just in Congress, but around the country.

(See: ComeHomeAmerica.us, edited by George D. O'Neill, Jr. Paul Buhle; Bill Kauffman and Kevin Zeese, Titan Publishing Company [2010])