A Philosopher's Blog

Obama, Libya & The Constitution

Posted in Law, Philosophy, Politics by Michael LaBossiere on March 24, 2011
Official presidential portrait of Barack Obama...

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Obama’s decision to impose a no-fly zone in Libya has been greeted with criticism from both the left an the right. One point of criticism is that he has acted unconstitutionally. The basis for this claim is, of course,  Article I, Section 8 which makes it clear that Congress shall have the power to declare War.

Considering this alone, it would seem that Obama has overstepped the legitimate limits of his power by sending the military into action against a foreign sovereign state. This is, interestingly enough, consistent with what Senator Obama said in 2007: “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. As commander in chief, the president does have a duty to protect and defend the United States. In instances of self-defense, the president would be within his constitutional authority to act before advising Congress or seeking its consent.”

While it is tempting to fall victim to an ad hominem tu quoque  here, the fact that a person makes inconsistent claims does not make any particular claim he makes false (although of any pair of inconsistent claims only one can be true – but both can be false). As such, while Obama has made at least one false claim it is not automatically the case that he is wrong now. After all, he could have been wrong in 2007.

Obama can, of course, refer to  Article II, Section2  which states that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…” This could be used to justify his actions. After all, he did not declare war on Libya (nor did they declare war on the United States). He merely sent American forces to impose a no-fly zone. While people have called this an act of war, this is different from making a declaration of war. As such, it could be concluded that Obama has acted within the limits of his legitimate powers.

Interestingly, he also seems to be acting in a way that is perfectly legal, at least in accord with the War Powers Act of 1973. This act was passed, obviously enough, in response to the undeclared war in Vietnam. The gist of the act is that the President can send forces abroad only under two conditions: 1) by the authorization of congress or 2) if the country is under attack or subject to a serious threat. There are, of course, some loopholes that can be exploited. The first is that the president has 48 hours in which to notify congress of such actions and the forces can remain up to 6o days (with 30 more days for withdrawal) before a declaration of war or authorization must be provided by congress.  Given that this act is law, Obama seems to have acted in a way that is perfectly legal.

Not surprisingly, this act has been subject to challenges from presidents and there are doubts about is constitutionality. After all, it seems to restrict the president’s role as commander in chief while simultaneously allowing the president to, in effect, wage war for three months without approval from congress or a declaration of war. Both of these concerns do certainly seem to have merit.

A somewhat more philosophical approach to the matter would involve considering the matter of what it means to declare war. One way to look at it is to take it as the formal declaration of war. On this view, Obama would seem to be acting in a legitimate way. As noted above, he has not issued a declaration of war. Rather, he has simply launched attacks within the territory of another sovereign nation-which has become something of a tradition among American presidents.

A second way to look at it is that the act of attacking another sovereign state could be seen as a declaration of war via action. In Locke’s discussion of what creates a state of war, such a state can be created by a statement of intent but also by actions (such as attacking). On this view, Obama’s attack would seem to be an act of war and thus could be taken as a declaration of war. If so, he would be acting unconstitutionally.

A third way to look at the matter is to take the view that congress’s power to declare war is not merely a matter of formally declaring a war, but the power to create a state of war that legitimately allows the military actions of war to be taken. While the President is commander in chief, he does not have the right to create the state of war via his actions. This, of course, does not entail that American forces have to simply take being shot at until congress gets around to declaring war. Nor does it entail that the president cannot order military actions that are short of war.  This, of course, raises the rather difficult question of sorting out what counts as a war. That, however, must be the subject of another discussion.

My considered opinion is that Obama has acted legally in that he has acted within the letter of the existing laws. However, on a more philosophical level, I believe (as apparently he did in 2007) that the congress must declare war before the president can legitimately wage a war. As such, Obama has acted in what appears to be a violation of the constitution. However, I am willing to admit that my position is not strongly supported and can no doubt be easily countered by an actual constitutional scholar.

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9 Responses

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  1. T. J. Babson said, on March 24, 2011 at 9:35 am

    He should have consulted Congress and sought approval before sending in the missiles and bombers.

    Seeking UN approval but not congressional approval–is this really a precedent we want to set?

    • frk said, on March 24, 2011 at 10:29 am

      Do you think Congress would have acted as decisively as they did when Bush asked for and got a resoluton for the Gulf War? Or would they have dithered as they have on so many decisions over the past few years? Did Bush get UN approval?

      Wouldn’t it be nice to have both UN and Congressional approval, except, of course ,in cases of direct attack on Americans and American interests. Perhaps we could avoid such a contentious issue arising in the future.

      Surely Congress could come up with an ironclad policy on how America deals with these wars of choice–whether they’re based on legitimate claims or not? But don’t expect ” ironclad” from Congress. There is quite a gap between FISA as it was passed by Congress in 1978 and FISA as it was implemented by Bush. When did Congress get around to approving Bush’s (re) interpretation of the law?

      • FRE said, on March 24, 2011 at 3:57 pm

        Ideally Congress would respond at one, either positively or negatively, to a president’s request to send troops. However, we know that it doesn’t work like that; in come cases, it could take Congress weeks to make a decision, and we cannot always wait for weeks.

        The Ancient Romans were aware of the dangers of waiting for the Senate to make important decisions. For that reason, they provided for a dictatorship in time of war. What actually happened was that Rome was at war so much of the time that the Senate lost power and influence and Rome’s government became a virtual permanent dictatorship.

        Unfortunately, it seems that there is no perfect solution.

  2. frk said, on March 24, 2011 at 5:45 pm

    “. . .they provided for a dictatorship in time of war”

    If their policy was no more specific than this– if they took such an ambiguous approach to
    the problem –it’s no surprise they and their policy failed.

    I should have written that we should have a detailed, and thoughtful but ” ironclad policy on how America deals with these wars of choice”. . . I should have’ :(
    In terms of American lives and our society’s cohesiveness (what there is left of it), it would certainly be worth having a congressional committee or a special commission study the problem intensively and craft a possible policy. Maybe Congress could actually act productively. . . and reach a decision that doesn’t heap all the responsibility on an executive who will be later criticized for whatever decision he makes.

    In a rare period— unlike this one—when we are not getting involved in or starting another war, and we’re not under the pressure of not having weeks to make a decision that may have possible worldwide consequences, it would be oh so nice to develop that policy, pass it, and follow it to the word. If exceptions arise, because, for example we have not anticipated the worst case scenario, at least the decision-making aspect of the problem could hardly be any more ambiguous than it is at present.

  3. adampjr said, on March 27, 2011 at 3:44 pm

    The war powers act requires an act of congress or an imminent threat. The 60 day rule must not contradict this. It means if the president responds to an attack he still needs to get around to getting approval. It doesn’t mean that he can go starting any wars he wants for 60 days.
    Any thoughts on the fact that the man who presented himself as something of an antiwar candidate and who many believe to be a closet Muslim is showing as much eagerness to start wars and use drones to kill arabs as his predecessor?

    • Michael LaBossiere said, on March 28, 2011 at 6:17 pm

      People are generally against war until they get in a position to have one of their own. However, he (like Bush and others before him) probably thinks that he is averting a full war or, at the very least, that he is acting from good intentions.

  4. frk said, on March 27, 2011 at 7:49 pm

    http://volokh.com/2011/03/21/why-congress-played-no-role-in-the-libya-intervention/

    . . .and the links contained therein. The first two paragraphs are most interesting. At times when the president didn’t ask for congressional approval for intervention (Korea, Kosovo) the ultimate results were debatable. We still have over 28000 troops in Korea. Tension there is constant. As part of NATO we still have about 1500 troops in Kosovo. And in the wars that Congress approved, Iraq and Afghanistan, we still have slightly fewer than 50k troops in Iraq and slightly more than 94000 in Afghanistan.
    We can add to this the charts contained in the Wikipedia article “United States Military Casualties of War” listing the human cost of wars throughout American history”, if we want an additional perspective on how wars approved by Congress and wars not approved by Congress compare and contrast in terms of human cost.

    On this topic, the above Posner article at Volokh Conspiracy is brief and worth a read.

    Imagine yourself in Revolutionary times, living in a country that’s protected from most of its potential enemies by two oceans . The exception may have been some dude who was constantly accused of wearing a tin-foil hat, of being paranoid- (Aside: Did the Founding Fathers foresee the invention of tin foil ?) The Founders likely did not foresee a time in the future when a deadly threat could cross the seas in an hour or two, give or take, from various “extra-continental” locations– any more than they could have imagined the possibility and the societal implications of an AK-47 in the hands of a drug-addled kid from a broken home. They couldn’t imagine our current defensive capabilities, or the possibility that those defenses might fail, anymore than two presidents and a the world’s best intelligence community imagined 9/!!. Our modern ‘seers’ saw/suspected/feared an attack as a possibility, but they foresaw nothing like the Twin Towers horror. Yet, anyone who was an avid reader of national newspapers and journals during the years prior to the attack would have been just as likely to predict the Towers attack as our intelligence community.

    In sum: The generalizations of the Constitution have their limitations. And Congress (and even the Constitution itself, in the form of amendments) has the power to address this problem . If their efforts are deemed extra-Constitutional by the Supreme Court, Congress can try, try again.

    My view is stated in my earlier comments to Mikes article . I don’t like the intervention, but presidents have acted with these kinds of powers (extra-Constitutional or not) before. If Congress REALLY wanted to be involved, if they were anything but the craven political animals that they are, they’d unite, Republicans, Democrats, and Independents alike, cast off their ideological bindings, and craft a policy that can clearly and unequivocally address situations like, Libya, Kosovo, and wars of choice like Iraq, and wars of immediate threat in an ICBM/nuclear age.

    Even among us non-political types , us non-leaders, it’s much, much easier to sit by and second guess. Let the Decider decide, claim you’ve been left out of your chance to contribute, then snipe at him from the sidelines. It happened with Clinton and Bush. It’s happening with Obama. And , if I can presume to foresee events over the next 20 years, it will happen again and again with presidents, Republicans and Democrats alike.

    Unless changes are made. But don’t hold your breath for that to happen.

  5. Shannon Moore said, on March 28, 2011 at 5:23 pm

    Have you read the war powers act? It makes it clear that the president must inform congress 48 hours in advance before engaging in hostilities. Whether its called “war” or not is irrelevant. I’ll quote a constitutional “Expert”;

    ‎”The president does not have power under the Constitution to authorize a military attack in a situation that does not not involve stopping an actual or imminent threat to the nation.”
    Barack Obama.
    Note the “expert” said “military attack” and did not add, “Unless he feels justified in doing so, or gets the approval from a world political body”.

    The war powers act also makes it clear that;
    It is the purpose of this chapter 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…

    It is true that the constitution makes the president commander in Chief. That does not mean he is given the power to use military force whenever he feels like it. The war powers act makes it clear 48 hours, no exceptions.

    http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001541—-000-.html

    • frk said, on March 28, 2011 at 10:09 pm

      I read this opinion on another blog:
      “The War Powers Act is not so much a law as it is a declaratio­n of poltical power.
      “The constituti­onal powers of the President as Commander-­in-Chief to introduce United States Armed Forces into hostilitie­s, or into situations where imminent involvemen­t in hostilitie­s is clearly indicated by the circumstan­ces, are exercised only pursuant to
      (1) a declaratio­n of war,
      (2) specific statutory authorizat­ion, or
      (3) a national emergency created by attack upon the United States, its territorie­s or possession­s, or its armed forces.

      Sub Part 2 is in play with this one since we joined the UN and by Congressio­nal decree and STATUTE signed, as a nation, the UN Charter authorizin­g use of force.
      The president made congress aware of the impending military action, and he now has 60 days with which to wrap it up or go to congress for authorizat­ion for another 30.”
      I can’t vouch for the blogger’s accuracy as he did not provide specific links to back up his claims.

      So: From the Congressional Research Service–

      http://www.fas.org/man/crs/RL32267.html#_1_45

      “d) Nothing in this joint resolution-

      (1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties; or
      (2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution. ”

      Souonds pretty clear cut. But. since the joint resolution was signed the following has taken place:

      “In some instances where U.S. Armed Forces have been deployed in potentially hostile situations abroad, Presidents did not submit reports to Congress under the War Powers Resolution and the question of whether a report was required could be raised. Representative examples of these instances since 1973 include:

      shooting down of two Libyan jets over the Gulf of Sidra on August 19, 1981, after one had fired a heat-seeking missile

      dispatch of AWACS to Egypt after a Libyan plane bombed a city in Sudan March 18, 1983

      shooting down of two Iranian fighter planes over Persian Gulf on June 5, 1984, by Saudi Arabian jet fighter planes aided by intelligence from a U.S. AWACS

      interception by U.S. Navy pilots on October 10, 1985, of an Egyptian airliner carrying hijackers of the Italian cruise ship Achille Lauro

      use of U.S. Army personnel and aircraft in Bolivia for anti-drug assistance on July 14, 1986″ [shortened from a longer list]

      shooting down 2 Libyan jet fighters over the Mediterranean Sea on January 4, 1989

      dispatch of military advisers and Special Forces teams to Colombia, Bolivia, and Peru, in the Andean initiative, announced September 5, 1989, to help those nations combat illicit drug traffickers”

      What’s the old saying?” Seems the War Powers Act is “honored more in the breach than in the observance.”

      I was interested to know 1/ What has been done about the “Proposed Amendments/United Nations Actions portion of this report since the time of the report 92004). If something has been done, what specific legislation is involved? If nothing, why have the points raised in this section of the report not been clarified?

      So here is where we were as of 2011:

      http://www.fas.org/sgp/crs/natsec/RL33532.pdf

      Pages 3-5, about Bosnia and Kosovo (NATO actions, show a Congress (controlled by Republicans from ’96 to 2006) that couldn’t definitively decide whether to get in or get out, to fund or not to fund.

      Now, I’m not saying this provides a definitive answer to the question. But I am saying that the issue of the War Powers Act v Treaties is muddy at best. You’ll find strong arguments on both sides on Google. Not being a legal scholar of the highest order, I’m still waiting for a definitive answer to the question and a convincing solution to the problem.

      Note: I’ve copied and pasted the link you provided directly onto my Firefox location bar three times, and three times I got a Not Found result. I hope you have better luck with mine. If not, Google: war powers act vs un treaty.. These links are, respectively the third and fourth from the top.


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