June 18, 2011

A travesty of a mockery of a sham, part 2

First of all, for the sake of clarity: the title of this post, and the one preceding it, were taken from the riveting argument given by Fielding Mellish in his New York trial for treason in Woody Allen's "Bananas." Fielding was a fearless advocate of free speech and for the right of an individual to act out his political views, including temporarily becoming the dictator of a small banana republic in Latin America, the chief export of which was apparently gonorrhea.

With that cleared up, I move on to saying that I'm having a difficult time letting go of the intransigence of the White House and Obama's refusal to just flat out admit the violation of the clear terms of the War Powers Resolution of 1973. While it has become de rigeur in modern American politics for presidents simply to ignore the law and to do whatever they feel like doing, with no consequences whatsoever, maybe it's still worthwhile, once in a while, just to point out that such lawlessness is in fact occurring.

Thus, going back to the beginning: here's how the mission was described very close to the inception of America's bombing campaign in Libya (from Reuters, on March 20):

The aerial assault by U.S., French and British planes has halted an advance by Gaddafi's armored units on the rebel-held city of Benghazi and attacks on air defenses and radar sites have allowed the ad-hoc Western coalition to establish "a consistent and persistent" air presence over Libya, enforcing a no-fly zone, a U.S. official said.
Okay, we've established what we did, and what we've been doing, although I get the part about "handing over" leadership to NATO, our "subordinate role," blah blah blah. None of this matters, however.

I may as well take advantage of my age and summon up certain memories of violent protests on the Berkeley campus in 1970. These were some of the bloodiest and most out-of-control of all. People got shot and killed on Telegraph Avenue, the Blue Meanies of the Alameda County Sheriff's Department and the tang of tear gas were everywhere, and a lot of the fun began to go out of the rights of free speech and assembly. What inspired this chaos? Nixon and Kissinger's expansion of the Vietnam War into Cambodia through an illegal bombing campaign, kept secret by the systematic falsification of military records of bombing runs and other ruses, all as documented in William Shawcross's brilliant account in Sideshow.

This is what led to the War Powers Resolution of 1973. President Obama may not realize this; most of his time seems to be spent these days (a) playing golf, (b) hobnobbing with rich Republicans or (c) doing both at the same time, as he is today. Congress, which was a much stronger political institution in 1973 than it is today, banded together to override Nixon's veto of the legislation. Old Tricky Dick knew who the statute was aimed at.

Thus, to keep quoting more and more of the Resolution itself in an effort to seal off all the exits:
Under what circumstances, legally, can Obama commence a bombing campaign in a foreign country without consulting Congress? The Resolution defines the "unilateral" right of the President to introduce American forces into foreign hostilities as follows:

Presidential executive power as Commander-in-Chief; limitation
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.

Okay, so we know, for a fact, that (1) there was no "declaration of war" (since the Libyan campaign did not begin on December 8, 1941); (2) there was no specific statutory authorization; and (3) there was no attack upon the United States. Therefore, Obama lacked the Constitutional and legal right to proceed on his own. This brings us to the question of when Obama should have sought Congressional authorization for his latest war of choice in Libya.

Here we look at 50 United States Code Annotated 1542:

§ 1542. Consultation; initial and regular consultations

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations. (Emphasis added.)

Yes, there were Libyan citizens in peril; there are Sudanese citizens in peril right now, and every single day. In Bahrain, Syria and other places, too. This was a "possible instance" where Obama could have easily sought and (maybe) obtained the authorization of Congress to commit U.S. forces before launching bombing and missile attacks. Maybe Congress would have said no; well, that's how the system is supposed to work. The right to declare war belongs to the legislature, not to the President. (Article I, Section 8, United States Constitution.)

Finally, with regard to this preposterous sophistry from Obama's inner circle (because it appears that Obama overruled his Office of Legal Counsel, who told him he was way off base) that the United States is not engaged in "hostilities" because it's such a one-sided massacre, or something: Baloney. We covered this one before. Congress in 1973 smoked out that end run in the Cambodian bombing campaign and thus deliberately established another, separate predicate for the meaning of "hostilities," to wit:

§ 1543. Reporting requirement

(a) Written report; time of submission; circumstances necessitating submission; information reported
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces (emphasis added); or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.


You cannot conduct bombing runs or launch missile attacks in the airspace of a foreign nation unless you're doing so with personnel and weapons "equipped for combat." This "hostilities" nonsense, concocted after the fact, does not pass the straight-face test.

To sum up: Obama lacked a legal or Constitutional basis for committing U.S. forces to combat in Libya without prior authorization from Congress, because the United States was not under attack. He then walked all over the reporting requirement to Congress. Finally, he continued his illegal war without ever obtaining (or even trying to obtain) authorization from Congress.

It's clearly an impeachable offense. It violates the primary Oath of Office of the President: to uphold the laws and Constitution of the United States. Our law-flouting President, of course, will take comfort in knowing the only institution capable of stopping him, the U.S. Congress, is an equally lawless group of scoundrels. A great day for the Republic all the way around.

1 comment:

  1. Machipongo John8:49 PM

    I really don't understand why Obama didn't request authorization from the Congress. It would have put the Republicans in an amusingly tight spot: they would have been forced to decide between giving Obama permission to do something hawkish and Presidential or denying him permission to "rid the world" of Gadaffi, a despot no less repulsive than Saddam and who actually conducted terrorist operations against U.S. citizens. Obama could have come to Congress, bowing and scraping and asking for permission, then sat back and watched the Repubs squirm. It would have been a thing of beauty.