On Wednesday in federal court, 10 members of the U.S. Congress sued President Obama in an attempt to end U.S. involvement in a war in Libya.These are the plaintiffs: Dennis Kucinich (D-OH), Walter Jones (R-NC), Howard Coble (R-NC), John Duncan (R-TN), Roscoe Bartlett (R-MD), John Conyers (D-MI), Ron Paul (R-TX), Michael Capuano (D-MA), Tim Johnson (R-IL), and Dan Burton (R-IN).
Rationale of the Suit
According to a statement from Congressman Kucinich:
“The lawsuit calls for injunctive and declaratory relief to protect the plaintiffs and the country from (1) the policy that a president may unilaterally go to war in Libya and other countries without a declaration of war from Congress, as required by Article I, Section 8, Clause 11 of the United States Constitution; (2) the policy that a president may commit the United States to a war under the authority of the North Atlantic Treaty Organization (NATO) in violation of the express conditions of the North Atlantic Treaty ratified by Congress; (3) the policy that a president may commit the United States to a war under the authority of the United Nations without authorization from Congress; (4) from the use of previously appropriated funds by Congress for an unconstitutional and unauthorized war in Libya or other countries; and (5) from the violation of the War Powers Resolution as a result of the Obama Administration’s established policy that the President does not require congressional authorization for the use of military force in wars like the one in Libya.”
I would have liked to see the Kellogg-Briand Pact and the United Nations Charter extend that list to seven items, but doing so would probably not have altered the result.
What Will the Result Be?
During the 70 years since Congress last declared war, the congressional authorizations of war have grown weaker, vaguer, and broader, but the Libya War has set a new mark by excluding Congress entirely. Courts have also tried to claim that even wars never explicitly authorized by Congress become constitutional once Congress funds them. For years now, we’ve watched congressional “critics” and “opponents” of wars in Iraq and Afghanistan vote over and over again to dump hundreds of billions of dollars into them. The Libya War, here too, sets a new mark: Congress has not authorized a dime for it.
Courts, nonetheless, might be inclined to do the very same thing Congress does on these matters: pass the buck. Congress, a court might argue, has the power to declare a war over, to forbid the spending of funds on it, and/or to impeach its architect. Congress has done nothing of the sort. A growing number of senators is writing a letter to the president. “My kids have done that,” a judge might remark. The House has held a vote on a resolution to end the war and failed to pass it. The House has attached amendments to two different bills forbidding funds from those bills being used for the Libya War, but those bills have yet to pass the Senate, and funds can come through other bills. The House, sadly, passed another amendment to one of those bills that would effectively transfer the powers of warmaking to presidents. Even once those bills pass, they might have to be applied retroactively to impact this case. The House has also passed a non-binding resolution expressing its concern that the Libya War has never been authorized, but failing to do anything about it. I don’t know on which side of this case that odd resolution will provide support, if either.
Is the Libya War Illegal?
Let’s assume, however, that the courts do not try to pass the buck back to Congress. Is the Libya War illegal?
I spoke to a college class Tuesday night, and one student asked me if I wasn’t being extremist or tactless by calling a war, and in fact all war, illegal. But “illegal” is not a derogatory description like “fat” or “ugly.” “Illegal” has a very precise meaning. It means that an action violates written laws. The current war violates the Kellogg-Briand Pact, which under Article VI of the US Constitution is the supreme law of the land. It violates the UN Charter which holds the same status. It also, in its conduct, almost certainly violates the terms of a UN resolution that is being used to justify it. But let’s look at the five points the court will look at:
(1) the policy that a president may unilaterally go to war in Libya and other countries without a declaration of war from Congress, as required by Article I, Section 8, Clause 11 of the United States Constitution;
This was the clear meaning of the Constitution, and overwhelmingly its interpretation both by those who wrote it and by those who used and studied it through most of US history. The catch is the past 70 years of history. If a law is violated routinely for 70 years, must it or can it or should it be enforced?
(2) the policy that a president may commit the United States to a war under the authority of the North Atlantic Treaty Organization (NATO) in violation of the express conditions of the North Atlantic Treaty ratified by Congress;
The North Atlantic Treaty affirms the UN Charter, and the UN Charter forbids war. But if that were the argument that the plaintiffs intended, wouldn’t they have listed the UN Charter? Presumably, they intend to rely on the North Atlantic Treaty itself, Article I of which states: “The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.” But there the defense can point to the UN resolution used to launch the war, and it will become necessary to point out that the United Nations passed a resolution for a humanitarian intervention, a no fly zone, a cease fire, an arms embargo, and a ban on foreign ground troops, but it was immediately used to bomb civilians, introduce arms, and employ foreign ground troops, not to mention drone bombings and an apparent assassination attempt. But if that were the argument the plaintiffs intended, wouldn’t they have listed the UN resolution on Libya? Perhaps they intend to argue that the North Atlantic Charter permits only wars in response to an attack on a NATO member, and that no NATO member was attacked. Fair enough. But the War Powers Resolution (see #5) is also only applicable if the United States is attacked, and everyone simply pretends otherwise, including presumably this lawsuit.
(3) the policy that a president may commit the United States to a war under the authority of the United Nations without authorization from Congress;
Here we return to the same ground as point #1 above. The Constitution says one thing. The historical precedent, including President Clinton’s actions in the former Yugoslavia, say something else. Again, does violation of a law serve to permit future violation of a law?
(4) from the use of previously appropriated funds by Congress for an unconstitutional and unauthorized war in Libya or other countries;
Congress has appropriated incomprehensibly vast sums of money for the military and for secret budgets. President Bush the Lesser gave himself and his successor(s) the power to secretly transfer funds to secret budgets. The CIA has been given the “legal” if unconstitutional power to do just about anything it wants, and to keep what it does secret. One result of that could be that this case is conducted in secret or is shut down due to secrecy concerns. Obama authorized the CIA to arm Libyan fighters, and the CIA has been on the ground in Libya since before the official launch of the US/NATO war. It would not be surprising to hear from the US Justice Department as early as today the cry of “state secrets privilege.” NATO might also serve as a money laundering operation here; once funds are handed over to NATO, it could be argued they are beyond US law.
(5) from the violation of the War Powers Resolution as a result of the Obama Administration’s established policy that the President does not require congressional authorization for the use of military force in wars like the one in Libya.
Yes, It Is Illegal
Clearly the Libya War is illegal under the War Powers Resolution. Either it is illegal because the United States was not attacked. Or it is illegal because required information has not been reported to Congress. Or it is illegal because it has gone on for over 60 days without a declaration or authorization of war. In no case is it legal.
The same might be said of the unmentioned Kellogg-Briand Pact. That pact bans war. This is a war. It is not a war that fits the exception for an attack on the United States, because Libya did not attack the United States or even threaten to or even attack or threaten to attack any U.S. ally or imperial outpost. In no case is the war legal.
Unless it’s not a war but something else, which is another argument we might see. There is a lot at stake in the question of whether dozens of small and even unmanned killing operations around the world are wars or something else. And if they are something else, do we have any laws that apply to them?
Time for Congress to Stand Up
Laws are what people choose to make of them. So is Congress. Whether or not this lawsuit succeeds, for Congress to continue to exist as the first branch of our government, it will have to stop deferring to the judicial branch and instead stand on its own two feet.
On June 3rd the House blocked a resolution to end the war by passing a toothless resolution asking that all sorts of information be provided by the President within 14 days. That comes due this Friday. It would not be shocking if the President missed the deadline or failed to actually include much of the requested information.
The House could then pass the resolution it rejected two weeks ago, ending the war. Or it could pass one barring the use of any funds for the war. Either such measure would have to be passed by the Senate as well.
The House on its own could simply refuse to appropriate any funds for the war. The Senate would not be needed. But thus far the House has done already that, and the funds have simply been found elsewhere in the President’s imperial pockets. This is why the decision on point #4 above is extremely important.
In the end, the continued meaningful existence of the House rests on the impeachment power. Bruce Fein has already drafted articles of impeachment for Obama over Libya. But the impeachment power was effectively removed during the presidencies of Clinton and Bush. Its revival does not appear imminent. Φ