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More on the constitutionality of US participation in the Libyan civil war

[ 37 ] April 4, 2011 |

Bruce Ackerman points out that Obama’s actions are arguably even more imperious than the constitutionally questionable actions of his predecessors, in regard to unilateral presidential decisions to engage in war.

As in the case of civil liberties abuses, this is yet another instance where progressives have as a practical matter almost no representation in the political process. Most Republicans have decided that their love for imperial adventures trumps their hatred of Obama (at least until something starts to go wrong), while most Democrats have either chosen to duck and cover, or have decided that Obama is so smart and wise and full of good judgment that they’ll put their objections aside.

On a related note.

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  1. joe from Lowell says:

    If Bruce Ackerman thinks that Obama’s actions here go beyond those “of his predecessors,” then he doesn’t know what he’s talking about.

    Seriously, this isn’t even the first time the U.S. has bombed Libya, recently, without Congressional authorization.

    Reagan actually send ground combat forces into Grenada, and Bush the Elder into Panama, without Congressional authorization. How about the old Haitian and Dominican actions – how long did they last without ever having received Congressional approval?

    Postulating that a bombing campaign goes beyond either of those casts serious doubt on whatever else Ackerman has to say. If he wants to decry the longstanding practice of how Presidents have acted on their own authority, have at it, but this silly insistence that Obama is the most imperialest president ever is nonsense.

    • rea says:

      Not to mention Jefferson sending the Marines into Tripoli without benefit of a declaration by Congress

      • David Kaib says:

        Prior to Jefferson’s inauguration, the Barbary Pirates attacked US ships, and the US Congress enacted a law authorizing the president to engage in naval action if the Barbary powers declared war. Then after Jefferson refused to pay tribute, Tripoli declared war on the US.

        In response, “Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was ‘unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.’”[14] He told Congress: “I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight.’”[14] Although Congress never voted on a formal declaration of war, they did authorize the President to instruct the commanders of armed American vessels to seize all vessels and goods of the Pasha of Tripoli “and also to cause to be done all such other acts of precaution or hostility as the state of war will justify.”

        Italics mine.

        That last sentence makes clear that the later ground assault had been authorized by Congress. The earlier one makes clear Jefferson believed that decisions concerning war were Congress’ to make.

        This incident is actually not very helpful in justifying the ability of a president to initiate hostilities without congressional authorization. It is a precedent for the ability of Congress to authorize hostilities without a declaration of war.

  2. joe from Lowell says:

    “On a related note,” the President’s belated acceptance of Congress’s restrictions on trying Guantanamo Bay prisoners in federal courts clearly demonstrates his tendency towards an imperial presidency.

    • Paul Campos says:

      I voted for the guy — I was even a precinct captain for him at the state caucus — but some of you are starting to remind me of battered spouses.

      • joe from Lowell says:

        So, Congress didn’t make it impossible to try these prisoners in federal court?

        Because I’m pretty sure they did. Your feelings about my feelings notwithstanding.

        • Paul Campos says:

          This is a largely phony excuse bandied about by Obama supporters. Long before Congress passed any legislation Obama unveiled his plans to continue indefinite detention in some cases, and use military tribunals in others. His plan to “close” Gitmo was essentially to move into the U.S. proper.

          • joe from Lowell says:

            This isn’t a conversation about “closing Guantanamo.”

            This is a conversation about trying suspects in federal courts, like Obama tried to do, or in military tribunals, as Congress required. Since you’re avoid the subject, I guess I’ll have do all the heavy lifting, and remind everyone about the months-long fight that followed Holder’s announcement that he intended to try these suspects in federal court in Manhattan, which ended with Congress voting almost unanimously to block any funds from being spent for such trials.

          • joe from Lowell says:

            It’s a very simple question, Paul: could Holder order these suspects brought on trial in federal court?

            Or is that an “excuse” I made up?

            • Murc says:

              I’m not Paul, but I’ll take a crack at this.

              As things stand now, no, Holder couldn’t order these suspects brought on trial in a federal court.

              But!

              Wouldn’t such laws as Congress has passed forbidding trying people in united states custody in federal court be either an unconstitutional violation of due process (meaning the DoJ, as a party with standing in this matter, could go before the courts and get said laws struck down) or in violation of treaties we are signatories to, which means they immediately cease to become valid, as treaties are the supreme law of the land ans trump everything but the Constitution?

              Seems like taking the fight to the legal system on this one is your fallback position, instead of shrugging and establishing some kangaroo courts.

              Holder and the DoJ haven’t even TRIED to get around Congress imposing laws that force them to commit human rights violations on them. They’ve rolled over and died on this one.

              • DocAmazing says:

                They’ve had some practice at rolling over and dying, so they’ve gotten good at it.

              • Joe says:

                The Administration seemed to want to have it both ways — civilian courts would be an option, but each would also be “enemy combatants” that could be legally held as well. If they did not do that, they would have trouble with a class of detainees they didn’t want to trust to the courts.

  3. Jason says:

    Why ruin the good points here with the absurdly uncharitable misreading of Drum? It just undermines what you’re saying.

    • Pinko Punko says:

      Especially because I don’t think KDrum was discussion whether the intervention was constitutional, or if his purported support of Obama would supercede the constitutionality of the question.

    • bay of arizona says:

      Drum said if he was discussing this with Obama in person and receiving the same intel and they still disagreed that he would put his trust in Obama no matter what he did.

      Its not the usual ‘we don’t know what he info he has access to’ that people usually say. He is saying no matter what, he will trust Obama to do what his right regardless of how he personally feels. What is the charitable explanation for it?

      • Jason says:

        He is saying no matter what, he will trust Obama to do what his right regardless of how he personally feels.

        He’s explicitly not saying that.

      • Bijan Parsia says:

        C’mon. In the original bit he overwrote “any doubt at all” (and no charitable reader would take that literally) and he clarified it in an update.

      • joe from Lowell says:

        He is saying no matter what…

        No, he didn’t say that. His statement was not so absolute as you’re making it out.

      • Incontinentia Buttocks says:

        Just a reminder that Drum supported the Iraq War in 2002-3, while saying that Bush just couldn’t be flat out lying about Saddam’s WMD’s, because if he were, that would be an impeachable offense.

        Four years later, when the Dems retook Congress, he mocked those calling for impeachment.

        In short, I don’t know why anyone would listen to Kevin Drum on the subject of presidential credibility.

        His problem is not undue loyalty to Obama, but rather an irrational tendency to believe those in authority.

  4. cpinva says:

    count me among those who don’t think obama is all that wise, and i’m not ducking & covering either. i’ve been kvetching about this since he first did it. just because he’s a democrat gives him no special leave to blatantly ignore the constitutional niceties.

    geez, i’d forgotten all about the dominican republic and haiti adventures. kind of embarrasing, since my father was involved in the dominican republic affair. woke up one morning, and dad was gone, to parts unknown. ah, the joys of being a marine brat!

    • joe from Lowell says:

      just because he’s a democrat gives him no special leave to blatantly ignore the constitutional niceties

      See, Paul, this makes sense.

      Not

      Obama’s actions are arguably even more imperious than the constitutionally questionable actions of his predecessors.

      Even more imperious, even arguably more imperious, than the full-on invasions of Grenada or Panama? Really?

      • And much, much more imperious than Reagan’s circumventions of the Boland Amendment in order to overthrow the Sandinista government in Nicaragua. You remember, something about “Iran” and “contras.” This is way more imperious than that.

        • Paul Campos says:

          (1) I’m referring to questionable decisions in regard to using the US military to fight undeclared wars, not constitutional abuses in general. I thought that was obvious from the context, and I’m pretty sure it was.

          (2) Leaving that aside “not as bad as Iran-Contra” isn’t exactly a stirring defense.

  5. Bijan Parsia says:

    Btw, does anyone have an opinion about Mark Tushnet’s argument that the Libyan Adventure is not a war in the relevant sense (since it doesn’t open our forces up to legal retaliation, due to the UN authorization)?

    I find it unnerving as it doesn’t rely on a ratified treaty obligation.

    • Joe says:

      It sounds like a quite debatable originalist argument that gives the President a troubling amount of power if some international body justifies it. I’m sorry — the First Gulf “War” was to me a “war” and one Congress should authorize.

      Even if no “war” is in place, anyways, the “commander-in-chief” has to follow policy put forth by Congress, not the U.N. So, war or no war, his final sentence doesn’t hold true. Authorization WAS needed.

      • Bijan Parsia says:

        I don’t know if the “framing era” is meant to be a substantive point (we should interpet it that way because the founders did) or just a suggestive observation (like the founders, we should interpret the declare war power be primarily about accepting legitimate retaliation).

        Still seems weird to me! What legitimates or delegitimates retaliation for congress? What consequences would there be?

        I think your second paragraph is not clear or correct: Which policy exactly and what leeway does the pres have in the absence of a policy line from congress is pretty close to the question.

        • Joe says:

          My second paragraph briefly stated an opinion and a “clear” statement would require an extended discussion. But, I would hold that the President has limited authority w/o a policy, such as to deal with emergencies and sudden attacks. Libya at some point does not meet that test, surely not the First Gulf War, which Tushnet suggests didn’t need congressional approval. I find that absurd, at least under a sound constitutional policy.

          • Bijan Parsia says:

            Ok, that’s a bit clearer to me. (Part of what’s confusing about your prior line is that it doesn’t make clear the space of policies which are binding on the president. I take it that the pres has some powers which congress can’t easily constrain, at least, directly. For example, if there were an invading army and congress voted to surrender, I think the president would have a case for ignoring that. Similarly, it’s not unreasonable to argue that our UN treaty obligations represent a hard to override policy. Consider an invasion of Turkey by Iraq. Presumably, NATO obligations would simply trigger our involvement.)

            I agree that there’s something very odd with a line that the first gulf war wasn’t a war. It’s hard to speculate on further development of this line, but I’d guess that if “war” turns out to have this highly technical meaning, that other constraints would still remain (e.g., appropriations). I’d also be interested to know what the constitutional shape of permissible use of force is in the absence of a declaration of war, per se. I.e., is there any constraint on the government as a whole on its war making actions (not just on the president)? I can see an argument that UN treaty obligations make an aggressive war illegal regardless of congressional action, I suppose.

            • Joe says:

              It also is clear to me that domestic and international rules are different in various ways. Such and such might not be an illegal “war” under international law. But, that doesn’t mean domestically Congress is required to authorize the use of force. Use of force need not be a “war” as such to require congressional involvement either.

              Congress, e.g., can authorize the calling out of the militia w/o it being a “war.” Examples were given on this thread to congressional authorization of force (see Barbary Pirates) that was not “war” as such. Force against pirates and so forth can be authorized by Congress per Art. I etc.

              The NATO treaty obligation trigger would have to be carefully regulated or it would could be an open-ended delegation of the war power to the President in the real world. There was a serious claim made, e.g., the Truman didn’t really have the authorization for Korea, but it set us down an accepted policy of open-ended executive power that is troubling given separation of powers and congressional authority. Again, the line drawing is complex and some to me artificial line that was allegedly drawn in a different time is not an ideal guiding point.

    • rea says:

      I don’t think much of where Tushnet attempts to draw his line; I’m very curious as to where Paul would draw it.

      Presidents have sent US forces into combat without a congressional declaration more times than can readily be counted, dating back at least to the John Adams administration. Is Paul contending that all of these actions were unconstitutional? That John Adams (supported by Washington and Hamilton) violated the constitution by fighting a war with France, Thomas Jefferson by fighting a war with Tripoli, and James Madison by fighting a war with Algiers?

      Generally speaking, I don’t have a lot of patience for arguments based on the “plain meaning” of the language of the constitution, when there are tons of precedent dating back to the Founders supporting a different interpretation.

      • Joe says:

        Congress authorized a limited naval war with France. The Supreme Court rejected the authority of presidential actions not following said authorization. Jefferson argued he only responded to attacks, holding back from taking the initiative on his own. Various other conflicts involved protecting U.S. citizens or personnel. Where are all the examples of a Libya sort of presidential war?

        • Hogan says:

          Here are some, limited just to Latin America. Between 1915 and 1934 we sent troops into just about every country in Central American and the Caribbean at least once (and occupied Haiti for the entire period); I’d be surprised if congressional approval was sought for any of those missions.

  6. [...] More on the constitutionality of US participation in the Libyan … [...]

  7. [...] have a new article up at the Prospect on this general theme. While I agree with Paul and Bruce Ackerman that it’s hard to square the current presidential dominance over military and security policy [...]

  8. H-Bob says:

    Has anyone explained the reasons for Obama’s reluctance to request authorization from Congress ? I can understand some of the urgency to act due to the situation but he’s now had time to request at least Congressional ratification.

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