Libya, the Invasion Continuum, and Us


By Roger Armbrust
Special to the Clyde Fitch Report

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Some members of Congress, led by Democratic Rep. Dennis Kucinich of Ohio, have been challenging President Obama’s aerial invasion of Libya, calling it “unconstitutional” and even “impeachable.”

You remember Kucinich? He’s the Congressman who had the guts to file bills in the House of Representatives calling for impeachment of both George W. Bush and Dick Cheney for implementing the U.S. military invasion of Iraq. It seems he doesn’t care which party an empire-minded president belongs to.

It’s interesting that this year more members of Congress seem prone to bring criticism of the chief executive for a military invasion. It’s only taken over a decade for the fear-the-president mood to begin changing on Capitol Hill — which is interesting because the U.S. Constitution hasn’t changed for quite a while.

The inaction of a cowardly Congress during the Bush administration led this journalist, in 2007, to write about our lawmakers’ lack of resolve and avoidance of defending our nation’s basic document. Unfortunately, since history is basically repeating itself, it’s time to expand on this vital issue.

Here’s the reality: Within the borders of the U.S., neither political rhetoric — including President Obama making our actions in Libya “very clear” — nor United Nations documents, nor Congressional resolutions, take precedence over the U.S. Constitution in designating who has the power to make and end war.

The Constitution states clearly and simply in Article 1, Section 8:

The Congress shall have power…to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

That’s the only paragraph that speaks specifically to war.

The article also provides Congress with powers “to raise and support armies…to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces,” and to “provide for calling forth the militia,” which we would call the National Guard. The Constitution’s Article 2, Section 2 states, “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.” The “calling” is left up to Congress, not the president.

That’s it. Nowhere in the executive powers article does it say the president has the right to declare or wage war at his own will and in his own way.

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The president, as commander in chief, should execute not his own will, but the will of Congress, and therefore more closely the will of the American people.

Presidents, including our present one, have usurped that will and power, usually from a weak-kneed Congress.

One such Congress, following Vietnam, felt a political need to “clarify” the roles of the two branches regarding war-making powers. The result was the War Powers Resolution of 1973.

The resolution stresses that the president can only send forces into hostile action in one of three ways: (1) Congress’s declaration of war; (2) “specific statutory authorization,” meaning Congress must pass a law allowing the hostile action; or (3) “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

The Congress, in 1973, showed its weakness in later paragraphs, where the resolution does give in, wordily allowing the president to initiate hostile action if he quickly reports back to Congress, justifying the action’s legality. Obama could say he’s following this law, if he does quickly report.

The problem is, Congress does not have the Constitutional right to abdicate its power to declare and wage war to the executive branch. That would take a Constitutional amendment. But this 1973 resolution basically does that.

This 1973 Congressional resolution was also the primary document cited by President Bush’s deputy counsel, John C. Yoo, in his Sept. 25, 2001 memorandum opinion on the president’s having “broad constitutional power to use military force.” But Yoo’s word isn’t law. It’s only a biased opinion within the then-Bush administration.

Congress also cited the 1973 document in its 2002 resolution allowing the president to send American forces into Iraq. But that 2002 resolution is simply Congress ignoring the Constitution.

Kucinich says he’ll introduce a budgetary amendment to defund any military attack on Libya. A courageous Congress might have taken such action on both Afghanistan and Iraq, saving American and Middle East citizens’ lives and greatly lowering our national debt.

But if Kucinich is going to push any such legislation through, he’ll need the support of voters nationwide who can convince their own representatives to gather some courage. If you agree with him, it’s time to get organized, get educated and get active.

Kucinich and others need to scrap that 1973 Congressional resolution. The courts should also gather the guts to rule on the resolution’s constitutionality. Members of Congress, on two occasions, have filed suit against a president in federal courts to challenge the resolution’s constitutionality — once in 1999-2000 and again in 2005. Both times lower federal courts avoided the issue, ruling that members of Congress “lacked standing to sue the President.” The U.S. Supreme Court let those judgments stand, and refused to hear the appeals.

Meanwhile, Congress and the courts continue to “piddle, twiddle, and resolve,” presidents continue to invade, and we continue to lose lives, dive deeper into debt and further dissolve our nation’s standing worldwide.

Roger Armbrust is editor-in-chief of Parkhurst Brothers, Inc., Publishers, and its Our National Conversation book series. Armbrust’s views do not necessarily represent those of The Clyde Fitch Report.