NEW YORK – Would launching a military operation in Syria violate the U.S. Constitution?
A book released this week presenting a case for the impeachment of President Obama says arguments Obama used in the 2011 military operation in Libya may have violated U.S. law. The U.S.-NATO-led campaign in Libya was launched under similar circumstances using the same “Responsibility to Protect” doctrine that reportedly is being used to justify the pending operation in Syria.
As with Bashar al-Assad’s Syria, Libya’s Moammar Gadhafi was accused of atrocities and human rights abuses in quelling a months-long rebel-led insurgency targeting his regime. Assad is accused of launching a chemical weapons attack against civilians last week.
In “Impeachable Offenses: The Case to Remove Barack Obama from Office,” New York Times bestselling authors Aaron Klein and Brenda J. Elliott dedicate a chapter to the possible constitutional issues with the military campaign in Libya.
The authors open the chapter by citing Obama and Vice President Joe Biden, who both previously interpreted the Constitution in a manner, the book shows, that would have made Obama’s use of hostilities in Libya illegal. Their interpretation would also make any U.S. strikes in Syria illegal.
An immediate issue is Article I, Section 8 of the U.S. Constitution, which states, “Congress shall have the power … to declare war.”
Legal scholars have long debated whether the stipulation means Congress must approve every use of military force abroad and whether the president maintains the flexibility to use force as long as hostilities do not become a “war,” a word that itself has many definitions.
Indeed, “Impeachable Offenses” notes that some previous declarations of war by Congress came after hostilities already had begun.
Constitutional framer James Madison wrote that at the Federal Convention of 1787, the phrase “make war” was changed to “declare war” to leave to the president the decision to repel sudden attack but not to commence war without the explicit approval of Congress.
John Samples, director of the libertarian Cato Institute’s Center for Representative Government, noted how Obama and Biden both interpreted the Constitution in a way that would make their own war in Libya illegal.
In a speech on the Senate floor July 30, 1998, Biden lectured that only one constitutional framer, Pierce Butler of South Carolina, thought the president should have the power to initiate war.
Biden concluded that under the Constitution, the president could not use force without prior authorization unless it was necessary to “repel a sudden attack.”
Obviously, the use of force in Libya did not fit Biden’s expressed definition, Klein and Elliott argue, since Libya posed no immediate national security threat.
Similarly, Syria is currently not poised to launch a sudden attack on the U.S.
“Impeachable Offenses” documents Obama himself agreed with the premise in a 2007 interview with the Boston Globe, stating “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.”
Biden expounded on the framers’ reasons for limiting presidential ability to launch hostilities: “The rationale for vesting the power to launch war in Congress was simple. The Framers’ views were dominated by their experience with the British King, who had unfettered power to start wars. Such powers the Framers were determined to deny the President.”
Concluded Cato’s Samples: “The framers did not empower the president to initiate war to prevent humanitarian catastrophes, deal with threats to international peace and security, or protect the lives of foreign nationals.
“The framers stated that the Constitution was instituted to provide for the common defense of We, the People, not the defense of people everywhere.”
Jack Goldsmith of Slate took the other side, arguing that Obama’s use of force in Libya was constitutional, citing other similar conflicts as precedents that provide the president with broad military powers.
“Impeachable Offenses” relates that Goldsmith noted how the Korean War was launched by President Truman in 1950 without congressional authorization as was Bill Clinton’s intervention in Kosovo in 1999
“An important principle of constitutional law –especially when the allocation of power between the branches is at issue – is that constitutional meaning gets liquidated by constitutional practice,” wrote Goldsmith.
“Congress has known about this pattern of presidential unilateralism for some time and done little in response. It has never impeached a president for using force in this way.”
Sen. Rand Paul, R-Ky., was among the lawmakers calling the war in Libya unconstitutional.
He contended the Libya conflict was prohibited by the War Powers Resolution passed by Congress during the Vietnam War in an attempt to rein in some of the president’s military powers.
The act states: “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.”
Paul argued that “not only is Mr. Obama’s lack of congressional authority for war unconstitutional, the war also is not in our best interest.”
“Our country is in the midst of an economic crisis, and we do not have the funds to subsidize the rest of the world,” he said.
Paul noted that during the campaign in Libya the U.S. provided 93 percent of the cruise missiles, 66 percent of the personnel, 50 percent of the ships and 50 percent of the planes.
Michael Lind, co-founder of the New America Foundation, argued at the left-leaning Salon magazine that the hostilities in Libya were both “unconstitutional” and “illegitimate.”
“Impeachable Offenses” notes Lind posited that by taking part in a war “unrelated to American defense on the basis of a U.N. Security Council resolution, without asking the House and the Senate for a joint resolution as the basis of his authority, President Obama has validated the fears of the critics that U.S. participation in the United Nations would informally amend the Constitution, by transferring authority to initiate all kinds of wars from Congress to the president.”
Obama’s policy of informing Congress of his decision to use force as part of an international coalition was further illustrated by then-Secretary of Defense Leon Panetta, who argued “international permission” provides a legal basis to initiate hostilities.
Under questioning from Sen. Jeff Sessions, R-Ala., at a Senate Armed Services Committee hearing, Panetta was asked whether it would be legal for Obama to repeat his decision in Libya by initiating a similar no-fly-zone in Syria without congressional approval.
Panetta stated: “Again, our goal would be to seek international permission and we would come to the Congress and inform you and determine how best to approach this. Whether or not we would want to get permission from the Congress, I think those are issues we would have to discuss as we decide what to do here.”
Sessions fired back: “Well, I’m almost breathless about that. Because what I heard you say is, ‘We are going to seek international approval, and then we will come and tell the Congress what we might do, and we ‘might’ seek congressional approval.’”
Panetta went on to suggest the president has the authority to “act in the defense of the nation” without congressional approval. He did not explain how intervening in Syria or Libya would serve to defend the U.S.
Sessions told Security Clearance in an interview after the hearing that Panetta’s comments were “very revealing of the mindset” of the administration. Panetta “seemed so natural in expressing it as if he didn’t understand this went against” the fundamentals of the government.
The Pentagon felt the need to clarify Panetta’s remarks after the comments stirred controversy.
“He was re-emphasizing the need for an international mandate. We are not ceding U.S. decision-making authority to some foreign body,” a defense official told CNN.