OBAMA’S UNCONSTITUTIONAL WAR IN LIBYA
By Paul Findley
Our initially-token involvement in Vietnam illustrates how a minor military intrusion abroad can mushroom into a major national tragedy. We must not suppose that our current adventure in Libya is a trivial affair. An act of war is never trivial. President Barack Obama’s illegal intervention in that country poses a threat to our national interests which Congress must not ignore.
The control of war powers is imbedded in our constitutional history. In the Philadelphia Convention of 1787, the status of the King of England as commander-in-chief of the armed forces was conferred upon the President of the United States, but the King’s prerogative to “declare” or authorize war was vested in Congress. The records of the convention show that the intent was to deny the President any power to use armed forces of the United States in military operations except to repel sudden attacks on American citizens, military, commerce, or territory, unless Congress should authorize him to act.
When George Washington was President, he considered it his duty to issue executive proclamation of neutrality as between Britain and France in order to preserve peace, unless and until Congress should declare war. Not only did Washington keep us out of a war that was none of our business, but he was sustained by the Neutrality Act of 1794, which is still on the books today and prohibits a private citizen from warlike acts against a foreign power with which the United States is at peace. When John Adams served as President, Congress authorized war on a limited basis against the French Republic until peace was restored by treaty. In his first annual message as President, Thomas Jefferson reported that he had ordered our navy to defend our merchant fleet on the Mediterranean Sea against North African pirates, but added that he could go no further until Congress had authorized him to make war. When Jefferson subsequently landed marines “on the shores of Tripoli,” he was authorized to act by a resolution of Congress.
The Gulf of Tonkin Resolution in 1964
These vital constitutional principles were threatened at the time of the Vietnam War. In 1964, North Vietnamese torpedo boats reportedly attacked our navy in the Gulf on Tonkin, but were repelled, and President Lyndon Johnson ordered retaliatory air strikes on the ports from which the enemy craft reportedly launched their attack. Congress reacted by passing the Gulf of Tonkin Resolution. The resolution approved the retaliatory attacks after the fact and warned the North Vietnamese that the United States and our allies were prepared to react further under the SEATO Treaty. But it did not authorize the President to undertake any military action. I was at the time a member of the United States House of Representatives, and the intent of the resolution is vivid in my memory. Before I voted, I told House Republican leader (and later President) Gerald R. Ford I was concerned that the resolution might be construed as a war declaration. He assured me it would not.
Johnson used this resolution as a false pretext to order a huge build-up of American armed forces and fight an un-winnable land war in Asia. Over 50,000 American troops were killed in action. Many more thousands suffered permanent disabilities. The economic costs were astronomical. And our government lost significant advantages in the Cold War.
The War Powers Act of 1973
In order to discourage recurrence of such tragedy and to restore the intended meaning of the Constitution, I joined colleagues of both parties in framing the War Powers Act of 1973. I started the legislative process by introducing a bill whose main demand was a written presidential report to Congress within 24 [later changed to 48] hours of any decision to order acts of war without advance congressional approval.
The Act prohibits warfare by the President abroad without authorization by Congress, save in very limited circumstances which the framers of the Constitution themselves recognized. It also gives the President 60 days to engage forces in hostilities without congressional approval but requires he cease war measures after 60 days unless Congress approves an extension. It was successfully supported by Senator Jacob Javits of New York and House Committee Chairman Clement Zablocki of Wisconsin. I did not support this provision, because I feared it would invite protracted presidential warfare.
One of my amendments clarifies the constitutional authority of the House and Senate by concurrent resolution to halt without delay any unauthorized war measures ordered by the President, even those occurring within the 60-day option. I successfully offered this argument: Government policy requires the agreement of three parties, House, Senate, and presidency; if the president orders war measures without approval of House and Senate, the two bodies may at any time by concurrent resolution order an end to such war-making. President Nixon vetoed the Act, but my vote helped Congress override the veto.
It is a necessary and proper law. Until Obama became president, compliance has been satisfactory with few exceptions.
Obama’s Intrusion in Libya
Obama was elected President in 2008 on his complaint that Congress should never have authorized our invasion of Iraq, and on the promise that he would avoid needless military entanglement abroad. Yet earlier this year, contrary to the advice of senior legal counsel in the Justice and Defense Departments, Obama ordered a military intrusion in Libya without approval of Congress. We are now spending $10 million every day, and supporting bombardment of military facilities of Gadhafi’s government.
After 60 days Obama continued presidential war-making, although he had no authority from Congress. The House of Representatives then passed a resolution of disapproval, but Obama ignored it.
Recently he sent a statement to Congress, claiming that he is not subject to the War Powers Act of 1973, because he is not involved in “hostilities” in his interpretation of the law. Speaker John Boehner commented that Obama’s position does not meet the “straight face” test. I agree. Armed forces of the United States have obviously been introduced into “hostilities” in Libya within the intended meaning of this legislation.
Senator Lindsey Graham has claimed that the Act is unconstitutional, “not worth the paper it’s written on,” as he put it. He proves only his incomprehension of constitutional history and principle. Senators John McCain and John Kerry proposed a resolution giving President Obama authority to continue in Libya over the next year, an act that would excuse, rather than condemn, unconstitutional executive war-making. Its enactment would encourage future breaches of the War Powers Act, and drag us inevitably down a slippery slope into conflicts plainly none of our business. Fortunately, the House rejected the McCain-Kerry proposal by an overwhelming bipartisan margin.
The framers of the War Powers Act understood that, if a President should relentlessly violate its provisions, impeachment would be a proper remedy. Thus far formal protests of the House have not been sufficient. It would be a sad day if the House had to impeach Obama in order to get his attention.
Paul Findley served as a U.S. Representative from Illinois 1961-83. He is the author of six books, the latest: Speaking Out: A Congressman’s Lifelong Fight Against Bigotry,Famine, and War. He resides in Jacksonville, Illinois.