Monte Kuligowski
What authority justifies Obama's actions in Libya?
By Monte Kuligowski
June 22, 2011

At this point, no lingering questions should remain as to whether Barack Obama is faithful to uphold the Constitution and the laws of the United States.

Contrary to popular belief, Mr. Obama did not first violate the War Powers Resolution (Act) on June 19, 2011. The president was in violation the day he committed U.S. Armed Forces to military operations in Libya on March 19. Why the Congress gave him an initial pass is inexplicable.

The War Powers Act was enacted by Congress in the aftermath of the Vietnam War. It was initiated by Democrats and was passed over the veto of President Nixon. The stated purpose of the Act is to "insure . . . the collective judgement of both the Congress and the President," when introducing the U.S. military "into hostilities."

Section 1541 states in relevant part:

"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 [bold added] 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."

Congress issued no declaration of war with respect to Libya. And, Mr. Obama did not seek the authorization of Congress. That leaves subsection (3), which requires an "attack upon the United States, its territories or possessions, or its armed forces."

No national emergency existed regarding Libya.

Clearly, President Obama had time and was required to get Congress's authorization before introducing the U.S. military into hostilities.

Instead, Obama sent a letter to Congress on March 21, two days after ordering "a series of strikes" (over 110 Tomahawk missiles), on a sovereign country. Mr. Obama leaves no doubt in his letter as to the basis of authority and authorization for his use of military force.

In the first paragraph of his letter, Obama cites a U.N. Security Council Resolution:

"Their purpose [the missile strikes] is to support an international coalition as it takes all necessary measures to enforce the terms of U.N. Security Council Resolution 1973. These limited U.S. actions will set the stage for further action by other coalition partners.

"United Nations Security Council Resolution 1973 authorized Member States, under Chapter VII of the U.N. Charter, to take all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya, including the establishment and enforcement of a "no-fly zone" in the airspace of Libya. United States military efforts are discrete and focused on employing unique U.S. military capabilities to set the conditions for our European allies and Arab partners to carry out the measures authorized by the U.N. Security Council Resolution."

The very last sentence of Obama's letter reads:

"I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action."

Unfortunately, for Mr. Obama, the report to be submitted within 48 hours of military deployment is subsequent to section 1541 of the War Powers Act. There is no way around the fact that, without Congressional authorization, the Libya offensive required an emergency created by an attack on the United States.

Additionally, with regard to the letter (report) Obama submitted, section 1543 states:

"[T]he President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth —

"(A) the circumstances necessitating the introduction of United States Armed Forces;

"(B) the constitutional and legislative authority under which such introduction took place; and

"(C) the estimated scope and duration of the hostilities or involvement."

Most notably, Obama's letter to Congress failed to set forth the "constitutional and legislative authority under which such introduction took place." Obama unleashed the U.S. military's power of death and destruction in Libya under the authority of the United Nations. Obama disregarded the authority of United States Congress and ran roughshod over the Constitution.

On June 3, the House passed a Resolution which duly noted that Mr. Obama had not acquired the authorization of Congress at any time for his military intervention in Libya. Speaker Boehner sent President Obama a letter on June 14, warning that a 90-day mark of either getting Congressional approval or pulling out was five days away. The next day, 10 members of Congress filed a bipartisan federal lawsuit seeking injunctive and declaratory relief to stop Mr. Obama's unilateral, unauthorized, non-emergency, illegal military campaign in Libya.

Regarding Boehner's letter, there is no applicable "90-day mark" in the War Powers Act. The Act actually required Obama to get the authorization of Congress within 60 days of submission of his above-mentioned report (letter).

Section 1544 reads:

"Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress

"(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,

"(2) has extended by law such sixty-day period, or

"(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces."

Even if Obama had acted with rapid dispatch in an emergency situation, he would have been in violation of the Act after 60 days. The additional 30 days only kicks in (creating the 90-day mark) if Obama had certified "in writing that unavoidable military necessity" involving the safety of the military, prevented a "prompt removal of such forces."

The White House responded to Boehner's warning with a 32-page report and letter from Obama attempting to justify the use of military force in Libya without Congressional authorization.

Interestingly, as Adam J. White in the Weekly Standard notes, "Rather than releasing a memorandum from the Justice Department's Office of Legal Counsel (OLC) — as it did at the outset of the military campaign — the administration offered no specific source for its legal conclusions. Instead, the White House's report simply stated that 'the President is of the view that' the War Powers Resolution does not apply."

Indeed, at this point, as the New York Times reported on June 18, both the Pentagon's general counsel and the Justice Department's Office of Legal Counsel have soundly rejected Mr. Obama's untenable justifications for bypassing the Congressional authorization mandate of the War Powers Act.

In short, the White House essentially argues that NATO is in charge and the president is leading from behind. And, because Obama is only killing people and blowing up things via air strikes from U.S. fighter jets and warships, authorization from Congress is not required "because U.S. military operations are distinct from the kind of 'hostilities' contemplated by the [War Powers Act]."

Ironically, in 1973 Congress chose to use the sweeping word "hostilities" over "war" in the War Powers Act to foreclose the baseless argument that Obama presently makes: hey, it's not a "war." It's just a humanitarian "operation."

Unfortunately, for Obama, the Act doesn't require "boots on the ground" for application. Under the Act, a president may not "introduce United States Armed Forces into hostilities" without prior authorization of Congress — unless, of course, we have a bona fide emergency.

In the Libya situation we have neither. But we do have a defiant president preferring the surrender of the U.S. Constitution to the authority of the United Nations. Apparently, the president of the world doesn't need the authorization of the U.S. Congress.

© Monte Kuligowski


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Monte Kuligowski

Monte Kuligowski is an attorney and writer whose legal scholarship, including "Does the Declaration of Independence Pass the Lemon Test?" (Duke Journal of Constitutional Law & Public Policy), has been published in several law journals... (more)

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