Obama’s Libya attack: Is it legal?

BOSTON — It’s a typical case of: you will and you won’t, you can and you can’t, you’re damned if you do and you’re damned if you don’t.

U.S. President Barack Obama was not eager to go to war against Libyan leader Muammar Gaddafi. He conspicuously lacked the braggadocio exhibited by previous presidents on the eve of a fight. Instead, he appeared badgered to act by Senators John McCain and John Kerry, and ultimately by Secretary of State Hillary Clinton, whose judgment is affected by the 800,000 lives lost in the 1994 Rwanda genocide, a conflict that her husband has regretted failing to address.

On March 19, while announcing he had ordered the air strikes, Obama seemed solemn but oddly remote. Rather than delivering the usual White House speech, he phoned in his remarks from Brazil, conveying that the United States was at war because we had no other choice.

Yet despite this persistent reluctance to fight, the president has been taking fire for the invasion from Capitol Hill.

The attack began from the left, the day the first Tomahawks were launched. In a Democratic Caucus conference call, a group of nine House Democrats “strongly raised objections to the constitutionality of the president’s actions,” according to Politico. In the call, Rep. Dennis Kucinich, a liberal Democrat from Ohio, raised the prospect that Obama’s move was an impeachable offense, the site reported.

These Democratic barbs were followed by objections delivered via Twitter and press releases from Republicans in recess, including Senators Susan Collins (R-ME), Richard Lugar (R-IN), and Rand Paul (R-KY). There has also been a litany from House Republicans, a crowd that you can imagine brandishing the war on terror and lining up on Fox News to question the patriotism of critics — that is, if the commander-in-chief were Republican.

Representative Roscoe Bartlett was particularly scathing. The Maryland Republican, who chairs the Air and Land Forces Subcommittee of the Armed Services Committee, wrote “The United States does not have a King's (sic) army.” He noted that the president sought the support of the Arab League and the U.N., and called the lack of Congressional consent “an affront to our Constitution.”

“Failing to obtain authorization from the U.S. Congress means that President Obama has taken sole responsibility for the outcome of using U.S. military forces against [Gaddafi] onto his shoulders and his administration," Bartlett said.

At issue is not necessarily whether these Congressional critics support the war; some do, and others don’t. Instead, they object to Obama’s failure to get Congress’s authorization before deploying the military.

This responsibility is spelled out in the Constitution, but presidents have so commonly ignored it that Congress sought clarification through the War Powers Resolution, passed in 1973 after hostilities in Vietnam dragged on for years without a formal declaration of war from Congress. The War Powers Resolution — passed by two-thirds of lawmakers after being vetoed by President Richard M. Nixon — elucidated that, although the president is commander-in-chief, the power to “introduce United States Armed Forces into hostilities” lies with Congress unless the United States is under attack.

“Few imperatives have been more twisted than the Constitution's language regarding war power,” according to presidential scholar Rick Shenkman, a vice president at VoteIQ and author of Presidential Ambition: Gaining Power at Any Cost. He points out that especially since Franklin Delano Roosevelt, presidents have declined to ask Congress before deploying the military.

“FDR on three occasions before Pearl Harbor confronted Nazi submarines in a quasi-war with Hitler without Congressional approval. At least he finally got a declaration of war after Pearl Harbor. Truman used U.N. authority as the basis for our ‘police action’ in Korea. Ike knocked off a couple of governments using the CIA without Congressional authorization, and likewise JFK launched the Bay of Pigs attack against Cuba without it. Bush at least sought Congressional approval for both the Afghanistan and Iraq wars, though he didn't request formal declarations of war,” Shenkman wrote in an email to GlobalPost. (Here's a summary of the difference between a declaration of war and Congressional authorization.)

“Obama is therefore acting just like his predecessors back to FDR,” Shenkman added. “His liberal supporters are in a difficult position, however, given their strong protestations of Bush's conduct. Obama in this sense is stretching his war powers further than Bush did.”

Obama hasn’t entirely ignored the War Powers Resolution. On March 21, he sent Congress a letter justifying the Libya attack.

“Left unaddressed, the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States,” Obama argued. (The resolution requires presidents to present Congress with such a justification for hostilities that lack a Congressional declaration of war.)

“I’m 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,” Obama’s two-page letter concluded.

On Monday, National Security Advisor Thomas Donilon argued that the Libya attack “is a limited — in terms of scope, duration and task — operation, which does fall in the president’s authorities,” the New York Times reported.

But neither Donilon’s statement nor the letter are likely to settle the matter, which might escalate as Congress returns from recess, especially if the war in Libya drags on or claims American casualties.

Either way, the most troubling criticism that Obama faces comes from a prominent Constitutional scholar, who in 2007 told the Boston Globe: “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.”

That scholar? Senator Barack Obama.  

Follow David Case on Twitter: @DavidCaseReport