Lawless Government
Obama flouts the War Powers Resolution.
Everyone pays lip service to the rule of law. Indeed I’ve never heard of anyone rejecting it as undesirable. (It has been called impossible under prevailing circumstances but that is a different point.) So why is the principle so flagrantly violated with almost no public outrage?
Take President Obama’s intervention in the Libyan civil war. Even if we grant that he could legally enter that conflict by his own unilateral decision – a big if, which we’ll explore below – the War Powers Resolution of 1973 requires him after 60 days to cease operations or ask Congress for authorization to continue. One week ago today the clock ran out on the Libyan intervention, yet Obama has neither ceased operations nor asked for authorization.
He’s violated the law. (Never mind that Obama said that Operation Odyssey Dawn would take days not weeks.)
To their credit a few members of Congress are protesting. “The president is not a king, and he shouldn’t act like a king,” Republican Rep. Dan Burton said. Democratic Rep. Brad Sherman agreed: “It’s time to stop shredding the U.S. Constitution in a presumed effort to bring democracy and constitutional rule of law to Libya.”
Now there’s bipartisanship one can applaud.
Unilateral Authority
How one feels about the Libyan intervention should be irrelevant here. (I think it’s improper by any reasonable criterion.) What’s under challenge is the executive branch’s unilateral authority to take the country into war, putting Americans and others at risk, not to mention spending billions of dollars in borrowed money. To say the least, the founders were determined to prevent just this from happening. Thus the Constitution gives only the Congress the power to declare and appropriate money for war. But since 1942 no president has asked Congress for a declaration of war. (“Authorizations” that give blank checks to a president don’t count.) That’s why the War Powers Resolution was adopted. It was a half-hearted attempt to restore some measure of congressional authority over war-making. The problem is that no president has accepted it, and members of Congress generally have been too pusillanimous to stand up to a president. Considering the Supreme Court’s reluctance to enter this kind of dispute between the “political branches” (as if the Supreme Court were not political), the Court probably would have ducked any challenge anyway.
So presidents have repeatedly gotten away with lawlessness. Yet as Glenn Greenwald notes, that does not make new violations lawful.
Under the War Powers Resolution a president can commit troops to combat on his own say-so only in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Thus the Libyan intervention is illegal under the Resolution. The battle between Muammar al-Qaddafi and rebel forces clearly fails to satisfy that description of “national emergency.” Obama, then, had no obvious authority whatever to lead a NATO air campaign against the Libyan government. Saving Libyan civilians from danger (even if that were a realistic prospect) cannot justify U.S. intervention. (On the dubious threat of a civilian massacre see Steve Chapman’s “Obama’s War of Choice.”)
What does the administration say? “[T]he President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest,” a Justice Department Office of Legal Counsel memorandum (pdf) states. “We also advised that prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.”
In other words, if a president judges a military operation in the national interest, he may on his own commit forces. The absence of congressional authorization or even funding is of no import.
The only problem is that the War Powers Resolution says nothing like that.
Sixty-Day Rule
The past cannot be changed, so let’s move on to the next key part of the Resolution: the requirement that after 60 days a president must stop combat operations or get authorization from Congress. (A president can take 30 days more if troops would be endangered otherwise.) In 1980 the Office of Legal Counsel gave its constitutional blessing to this provision, and that apparently has not been reversed. Revealingly, according to the New York Times, “Administration officials offered no theory for why continuing the air war in Libya in the absence of Congressional authorization and beyond the deadline would be lawful.”
There you go. So it is written, so it shall be done. They don’t need no stinking theory. The closest we got to a justification came from press secretary Jay Carney, who said that the commentary about the Resolution “could fill this room, and none of it would be conclusive.” Even if that were true, shouldn’t the administration err on the side of dispersed rather than concentrated power?
The Times quoted Harvard Law Professor Jack Goldsmith, who ran the Office of Legal Counsel in 2003 and 2004, on the unprecedented nature of Obama’s action: “There may be facts of which we are unaware, but this appears to be the first time that any president has violated the War Powers Resolution’s requirement either to terminate the use of armed forces within 60 days after the initiation of hostilities or get Congress’s support.”
Mental Contortions
Some allies of the President have undertaken prodigious mental contortions in arguing that the Resolution doesn’t apply to Obama’s action. It’s been said that deadly drone attacks (which have killed noncombatants) and the U.S. supporting role for NATO don’t count as warfare. That’s laughable. Besides, the Times quoted Secretary of State Hillary Clinton saying just this week: “Even today, the United States continues to fly 25 percent of all sorties. We continue to provide the majority of intelligence, surveillance and reconnaissance assets.”
If it looks, sounds, and smells like war, it’s war.
Some may wonder why Obama didn’t ask Congress for authorization, since he could surely have gotten it. Greenwald knows why: “The Obama White House is simply choosing not to seek it because Obama officials want to bolster the unrestrained power of the imperial presidency entrenched by [the Bush administration].”
It would behoove Obama to heed the words of a once-future president who said:
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.
and:
No more ignoring the law when it’s inconvenient. That is not who we are. . . . We will again set an example for the world that the law is not subject to the whims of stubborn rulers.
That was candidate Barack Obama. The fair-weather foes of arbitrary centralized power have much to answer for.
Comment by Joshua Farrell on 27 May 2011:
And an another top notch article from Mr. Richman!
I am wondering why no one else is making this a big deal. He is breaking the law that governs his office.
Comment by Lex de Azevedo on 27 May 2011:
The “American experiment in liberty” cannot exist without a law-abiding citizenry. How can we hope to maintain a law-abiding citizenry without a law-abiding government?
Comment by George Leef on 27 May 2011:
The oath of office requires the president to uphold the Constitution and faithfully execute the laws. Barack Obama has repeatedly trampled upon the Constitution and refused to faithfully execute the laws, with this instance being the most recent. The legal remedy for malfeasance in office is impeachment.
Comment by DownsizeDC on 27 May 2011:
Obama has asked for a “resolution” of support. The usual gang in the Senate is working on a resolution; the House is ignoring it.
Comment by Gary Chartier on 27 May 2011:
Joshua, I fear the answer is that the would-be “grown-ups” in Washington really believe that it’s naive and anachronistic to see the President’s foreign affairs powers as limited in any way.
Comment by Libertarian jerry on 27 May 2011:
So whats new. 90% of what the Federal Government does is either illegal or not Constitutional.The Constitution is a dead letter. We do not live in a country of the power of the law,but a country of the power of a few men. People have to realize that in America there is a power elite that controls the organs of government. Most of the politicians,judges and bureaucrats have been bought and paid for. Most of the American people are more or less on the government gravy train. The fact that the train is heading over a cliff doesn’t phase the average American serf,as long as the checks and benefits keep rolling in. When the elite finally pulls the plug on whats left of the American economy, then the American serfs will clamor for a dictator to lead them to “the promised land.” For those people who are self reliant and self supporting and who truly think independently, better to be prepared and let the fools go down with the ship. Keep your powder dry and be prepared. What is happening to America has happened over and over again throughout history,nothing is new,sorry to say.
Comment by Sheldon Richman on 27 May 2011:
The Senate is in no hurray with its resolution. It wouldn’t vote until after its Memorial Day vacation. Yet the clock ran out a week ago! And let’s not forget that the intervention does not satisfy the WPR criteria for an unauthorized operation. The government thus demonstrates its contempt for the laws it passes. We should do the same.
Comment by Claus-Erik Hamle on 28 May 2011:
Drone attacks and night raids often killing many civilians should be stopped immediately. 48 prisoners at Gitmo will never get a trial and will never be released. And all, or probably almost all are completely innocent. The evil,crazy,stupid Americans paid locals for information. He is even worse than Bush but the problem is that McCain,Palin,Gingrich are clearly insane. But the same could be said about Obama who feels above the law. He tried to kill two US citizens driving a car in Yemen by drone attack. Godfather Obama did kill the two in the car but the SUPPOSED terrorists had changed car. Judges are like cancer, says Berlusconi and Godfather Obama.
Comment by John Hawk on 28 May 2011:
…why is anybody surprised that the American citizenry is not outraged at the shredding of our Constituition? Americans are the most pathetically ‘dumbed-down, numbed-out’ creatures on the planet!
Comment by admin2war on 28 May 2011:
Thanks Sheldon. How many of us outraged, heartsick Americans who understand all this will still continue to vote for Democrats because the Republicans as per the post are “clearly insane”? At the end of the day, “insane” Republicans plus complicit Democrats equals The War Party. The first thing Democrats did upon regaining control of the House in 2006 was to take impeachment off the table; indeed there was not one
single hearing held to investigate Bush/Cheney’s run-up to war in 2001/2002/2003. And let’s not forget the complete BS that was the 9/11 Commission. Neither truth or respect for life matters and hasn’t for a long time. It’s all about money, power and dumbing it down. It takes a lot of time to figure out where this actually started (if you want a good read on this, try House of War by James Carroll) but this is where we are now. Politics follows economics and what’s for public consumption at least is all sideshow (good info at Richard Wolff, http://www.rdwolff.com). We are so deep down the rabbit hole now I fear there’s no arguing with Libertarian Jerry above, especially when good, thinking people who truly hate war, follow the news and try to learn from history continue to somehow support Dems like Obama. How many drone strikes are on the menu for this Memorial Day weekend? We suck.
Comment by James Anderson Merritt on 28 May 2011:
I feel sorry for the historians and professors of history. The biggest argument in favor of anyone paying attention to their subject, much less studying it, is Santayana’s observation: “Those who cannot remember the past are condemned to repeat it.”
Yet, today, there are thousands, perhaps millions of people, in our own country alone, who, with the aid of history texts, “remember” the great empires and the reasons they fell. They can see that our own republic has, in so many ways, though not technically, become an empire. And they anticipate the trajectory of our fall. Yet they seem impotent to avert the disaster that some say is coming, even as others say it is already upon us.
If knowledge of history provides no advantage, if “remembering,” in the Santayana sense, is of no use, why accord that subject any importance at all? Historians had better find other work do to. Here’s a thought: We always need comedians!
Pingback by Non Sub Homine? on 28 May 2011:
[...] The President is above the law. [...]
Comment by Guillaume on 28 May 2011:
All right guys, lighten up. What can the poor sucker do? He is bought and paid for by Israeli interests. He has no freedom of movement, and even if he did, he has no understanding of the issues involved.
You have another bought and paid for whore in Washington. No surprise there even if he is our presidente. And speaking of whores, the U.S. senate is a body of whores. Sorry I don’t know the proper name for such a body (for ex. a flock of crows is called a “murder” of crows. Maybe someone can enlighten me.
In fact, Washington is the biggest red light district in the country, and Mme Clinton is the keeper of the brothel. And the enormously rich and powerful American Jewish community protects the whole set up from any authorities. Used to be the Mafia.
Hermes Trismegistus
Comment by Cleveland on 28 May 2011:
The neoconservative defense plan for Israel is obviously more important than the US constitution. Obama and Biden don’t even have the guts to talk back when they are insulted by Netanyahu.
Comment by avatr sing on 28 May 2011:
BOYCOTT THE TERRORIST CRIMINAL POLICE STATE UK: BOYCOTT THE LONDON OLYMPICS 2012 !
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==================== http://www.youtube.com/watch?v=DHx0__seXxY&feature=player_embedded=======================================
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In recent developments the US, England and France have declared a so-called NATO war against Libya. They have frozen $32 billion held in trust by the US in the US. That is the largest amount ever held by the US concerning a foreign country’s asset. The three countries want Libya’s oil, four water aquifers, central banks and their 484.5 tons of gold, plus the Libyan funds held by other countries. These three want to steal it all and leave the country destitute. The EU has in addition frozen $67 billion. It is thought that because the US is desperate for funds that they will now put into the economy those funds to help keep the economy from collapsing.
Anything to keep the game going, anything to deceive. We see no comment in any media that the US and European countries had frozen some $32 billion in US banks and $67 billion in European banks of Libyan sovereign wealth funds. As you have seen desperate people do desperate things. These funds do not belong to Mr. Gaddafi, they belong to the Libyan people. It is simple the west is broke and needed the funds. When you see Chatham House all over the European news you know the black nobility executed this.
The US Treasury and the Fed have created a giant bond fraud and the world’s professionals and governments are well aware of it. If they have to take the US dollars in trade they have to take the inflation that comes with them.
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===Afghanistan and Pakistan are merely stepping stones on the road to “taking out” or dismembering the only power on earth which can be a competitor to the US, China. And the US ruling class is deadly serious about this. Its main propaganda weapon will be human rights, in the form of free speech, ethnic rights and, yes believe it or not, trade union rights (!). If one has any doubts about it, the latest example is in today’s NYT: http://www.nytimes.com/2011/05/09/world/asia/09ch...
Comment by avatr sing on 28 May 2011:
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Kaiser Wilhelm II avowed that he was fighting for “Right, Freedom, Honor, Morality” (and in those days, they were capitalized) and against a British victory which would enthrone “the worship of gold.
And the British cabinet set up the Territorial Desiderata Committee, charged with choosing the most lucrative of the other side’s possessions to acquire in the postwar division of spoils. Near the top of the list of desiderata: the oil-rich provinces of Ottoman Turkey that, after the war, would be fatefully cobbled together into the British protectorate of Iraq.
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===Last year, British forces in Helmand province send a message to the Taliban that all major operations were carried out by the Americans, so if we did not target them, the British forces would not target the Taliban,” Nazir said.
May 5, 2011
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____There are no children’s books on how the US government, in the 1980s, sponsored the production of bilious textbooks for the jihadis
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“Fascism should more appropriately be called Corporatism, because it is a merger of states and corporate power.”…Benito Mussolini
Yeah, this truly does apply.
Comment by avatr sing on 28 May 2011:
adviser, Zbigniew Brzezinski, who, when asked by the French magazine Le Nouvel Observateur if he regretted “having given arms and advice to future terrorists,” answered that he did not: “What is most important to the history of the world? Some stirred-up Muslims or the liberation of Central Europe and the end of the Cold War?”
——————————————————————————————-Afghanistan and Pakistan are merely stepping stones on the road to “taking out” or dismembering the only power on earth which can be a competitor to the US, China. And the US ruling class is deadly serious about this. Its main propaganda weapon will be human rights, in the form of free speech, ethnic rights and, yes believe it or not, trade union rights (!). If one has any doubts about it, the latest example is in today’s NYT: http://www.nytimes.com/2011/05/09/world/asia/09ch...
Comment by avatr sing on 28 May 2011:
————-NO IT IS NOT ISRALE BUT ENGLAND WHICH USES USA TO MAKE PERPETAUL WAR ON ALL THOSE COUNTRIES BRAWEN AND WHITE WHO DARE TO RISE UP ON THEIR OWN MERIT AND EFFORT. ENGLAISH ARE THE PARASITE PEOPLE WHO JSUT WANT TO LOOT OTHERS WEALTH JSUT LIEK THAT-OFOCURSE THEY DONTO WANT TO WORK FOR THAT SO THEY USE USA MILITARY TO DO THEIR BIDDING.
IT SO HAPPENS THAT ISRALE AGENDA SEEMS TO COINCISDE WITH THAT OF THE BRITISH PIARATES.
DURING REAGAN ERA OF HARD COLD WART THAT DEFENCE MISNTER CASPER WIANEBERGER A POLE AND ANTI RUSSAIN WAS A VIRULENT ANTIJEW BUT A VERY PRO BRITISH THAT IS WHY HE STAYED IN HIS JOB LONG ENOUGH TO EARTN KNIGHTHOOD FROMN QUEEN OF ENGLAND FOR HIS SERVICE TO ENGLAND AS AMERICAN DEFENC MINSTER.———————-
Comment by Donald M. Coder on 29 May 2011:
Is this the finest collection of ignorance and low-lives on the Internet? If there is something worse, I would love to see it!
Comment by liberranter on 29 May 2011:
So whats new. 90% of what the Federal Government does is either illegal or not Constitutional.
Make that 99.99999 percent – and growing.
Come on now, people. It’s really far past time that we knock it off with this obsessive belief that printed words, upon which some abstract body of authority sprinkled the holy water of official sanction, constitute enforceable law. “The Law,” as it has been traditionally understood in English-speaking society for over a millennium, bears force only as long as the majority of such a society abides by the moral code that give it such force. You would have to have been comatose, or living in a remote rain forest for the last six decades to not see that the Amoricon Sheeple, once known as the American People, no longer embrace such a moral code. Ergo, “the Law,” as it existed based on that long-gone moral code, is also as dead as the society that spawned it.
Bottom line: His Imperial Holiness, Messiah King Barack the First, gets away with his crimes because the degenerate society that spawned him –and that he represents– wants him (and his predecessors and successors, regardless of their professed political ideology) to commit such crimes and possess unlimited powers to commit them.
Comment by Denny Jackson on 29 May 2011:
“The government thus demonstrates its contempt for the laws it passes. We should do the same.”
And there, precisely, is the solution. What is a “law” but the arbitrary opinion of the majority of a roomful of men and women pretending to be “legislators.”
Non-cooperation, not continued participation, will be the only real answer to the problem of the fraudulent and criminal system of state monopoly on violent aggression. Do not consent to being governed by anyone. Do not comply. Just say no! Resist!
Comment by Tory II on 29 May 2011:
LOL ! Democrats are the only complainers. Hey Democrats, how about obeying the 2nd amendment.
Comment by Eric Meinstein on 29 May 2011:
It is lawless government. Nothing else matters until this is resolved.
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Comment by Mike Wetzel on 30 May 2011:
Two more impeachable offenses. The list is growing long.
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