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There has been much hand-wringing on the left over the legality of the decision to participate in creating a “no fly” zone in Libya as a result of UN Resolution 1973.  Most of the arguments rely on the musings of Pundits rather than historical analysis to support their claims that President Obama continues in his fall from leftist grace by waging an illegal and unconstitutional military action. In particular, arguments rely on Michael Lind's article in Salon to justify the claim that this President is stretching the boundaries of executive power beyond his predecessors (and thereby giving credibility to the Republican meme of Obama as a dangerous, Muslim-loving dictator).  I have many reservations about the decision by the President to participate in the Anglo-Franco coalition to establish a no-fly zone, but the record needs to be set straight about whether or not the action is unconstitutional and whether, as some of the usual critics on the left suggest, the President is going beyond even the Bush administration in engaging in an extra-legal act of war.

    History (something that we really must get back to reviewing before we jump on some pundit’s political bandwagon) demonstrates that the President's use of military power against Libya is conduct that has been accepted by every President since Thomas Jefferson as both reasonable and necessary (whether or not it was actually reasonable or necessary).  

     Ever since the Constitution was ratified, Presidents have struggled with the Founders’ restriction on executive authority to engage in military adventurism by requiring that Congress, not the President declare war.  Thomas Jefferson struggled with this issue during the First Barbary War in 1801-1805.  Ironically, the First Barbary War was fought against the Sultanates of Tripoli and Morocco, who were known as the Barbary States. President Jefferson asked Congress for a declaration of war in 1800 but Congress did not declare war until 1802.  In 1801 the Pasha of Tripoli demanded tribute from the US in the amount of $225,000 and when Jefferson refused to pay, the Pasha cut down the flagstaff in front of the US consulate in Tripoli, thereby declaring war.  The schooner, USS Enterprise, defeated the corsair, Tripoli, in a fierce naval battle in August 1801.  Rather than declare war, in 1802, Congress passed a resolution which authorized the President to employ “such of the armed vessels of the United States as may be judged requisite …for protecting effectually the commerce and seamen thereof on the Atlantic Ocean, the Mediterranean and adjoining seas.”

Currently the US Navy lists 225 uses of military action authorized by every President from Thomas Jefferson to Bush I in which the president did not secure a Congressional Declaration of War or other Congressional resolution authorizing military action. These include actions against Native Americans, actions against foreign powers who controlled Florida, Oregon, Texas and California, and actions against the Hawaiian monarchs as well as actions in foreign countries from the Caribbean to Central America to Europe, Africa, and Asia. Of the 234 uses of military action listed by the Navy, only 9 involved a Congressional Declaration of War or other Congressional resolution authorizing the use of military force and these exceptions include both WWI and WWII.  The other 225 splendid little wars were justified by the respective Commanders-in-Chief as protecting US commercial interests and civilian lives. Additionally, although Congress ratified military action in the wars in Afghanistan and Iraq, these wars have been waged for almost a decade without a Congressional Declaration of War.  The argument that President Obama is exceeding his predecessors in extending the powers of the Presidency is simply not supported by historical reality.  Shame on those congressional wimps and hawks in both parties for decrying the President’s actions while at the same time refusing to acknowledge Congressional culpability in a more than 200 year tradition of extra-Constitutional exercise of military power simply because the people’s so-called representatives did not want to own the consequences of their action and risk not being re-elected.

    The War Powers Resolution was passed over President Nixon's veto to require the President to "report" to Congress concerning any military action authorized by him within 60 days of its inception.  SCOTUS has never ruled on the Constitutionality of the War Powers Resolution and every President since Nixon has justified its use of military power absent a Congressional Declaration of War on the basis of the War Powers Resolution.  This seems to suit Congress just fine because evading their constitutional duties is something that members of Congress are very adept at doing and the Libyan No-Fly Zone Resolution is no exception. By relying on the War Powers Resolution, President Obama is not pushing the envelope of executive power, he is acting in a manner that is historically consistent with his predecessors, including both Jimmy Carter and Bill Clinton.  We may argue that the President is making the wrong decision by participating in the no-fly alliance, but why argue that the President’s actions are beyond the pale of legality and authority?  Why the vitriol? Moreover, there exists an additional legal basis for the President’s actions.  The UN Charter was duly ratified by the Senate with full knowledge (presumably they read the treaty) that the UN Security Council had the power to authorize military action in response to "threats to the peace," "breaches of the peace" or "acts of aggression." By participating in the no-fly alliance, the President is acting within the parameters of a duly ratified treaty.  

Finally, Lind’s allegation that countries who opposed UN Resolution 1973 represent 40% of the world population is simply disingenuous.  Under Article 27 of the UN Charter:

Security Council decisions on all substantive matters require the affirmative votes of nine members. A negative vote, or veto, also known as the rule of "great power unanimity", by a permanent member prevents adoption of a proposal, even if it has received the required number of affirmative votes (9). Abstention is not regarded as a veto …

The vote on UN Resolution 1973 was 10-0.  China and Russia could easily have defeated the resolution had they in fact opposed it because as permanent members of the Security Council, their negative votes effectively veto a proposed resolution.  There were no negative votes.  By abstaining, China, Russia, Germany, and India chose not to register an official opinion on the matter.  Isn't there an oft-voiced claim on the left that silence indicates assent NOT dissent.  

I share the concerns voiced by many that participating in a coalition to enforce a no-fly resolution in Libya may be entangling the US in a military action that has no specific aim and no concrete exit strategy.  But let’s not feign surprise that the President acted in the long-established tradition of every American president since Thomas Jefferson by engaging in military action without first obtaining a declaration of war.  And let’s not pretend that the President is pushing the limits of executive power further than did his predecessors.  The President is not only acting consistently with his predecessors, arguably, by acting consistently with the UN Charter, a treaty ratified according to the Constitution, the President has the authority to participate in the Anglo-Franco no-fly resolution. Moreover, under the War Powers Resolution, he may engage in military action for 60 days before reporting to Congress on the status of the action.  At which time, the congressional wimps and hawks will likely authorize the use of whatever force the “commanders on the ground” deem necessary—unless of course, Boss Limbaugh and the teabaggers decide that the party of “NO” will gain some political benefit by refusing to authorize this action.  I don’t think that’s likely though because the pundits of the professional left are wielding the hatchet just fine.

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Comment Preferences

  •  The War Powers Act (3+ / 0-)
    Recommended by:
    BigAlinWashSt, Tchrldy, princss6

    seems pretty clear on the 60 (90 really) days before needing Congressional approval. I'm against any direct bombing or occupation by the US, but I don't get the illegality argument and the impeachment thing is approaching delusion.  

    Touch Social Security and your political career is DOA. We won't ever forget, and you will never get elected to anything again.

    by Karl Rover on Mon Mar 21, 2011 at 02:53:29 PM PDT

  •  Good points. But in a way, it makes it sound (1+ / 0-)
    Recommended by:

    worse than illegal.   225 sounds downright immoral.

    S.A.W. 2011 STOP ALL WARS "The Global War on Terror is a fabrication to justify imperialism."

    by BigAlinWashSt on Mon Mar 21, 2011 at 03:08:54 PM PDT

    •  Well, I don't disagree with you there. (2+ / 0-)
      Recommended by:
      BigAlinWashSt, princss6

      I do think the President needs to be scrupulous about following the law, and I believe that this President has been.  I am uncomfortable with the idea of military action outside a Declaration of War, but the fact is, President's engage in military action and rarely get Congressional authority.  Only 9 times out of 234.  sigh.

  •  Well done... (2+ / 0-)
    Recommended by:
    bnasley, Tchrldy

    thank you for outlining the issues and policies very clearly for me.  Very thorough and classy diary!

    I'm a bit stunned with all that is happening across the globe.  It is just astounding.  

    I for one am tired of pandering to perpetrators --- many of whom are opposed to any discussion however it comes. -- soothsayer99 DPK Caucus

    by princss6 on Mon Mar 21, 2011 at 06:50:15 PM PDT

    •  Thanks, princss6 (1+ / 0-)
      Recommended by:

      unfortunately, most on this site would rather ignore the historical analysis and blindly follow a few pundits on the professional left who make a good living as contributors to ostensibly left leaning corporate journalism.  It is so disheartening when the professional left decides to eviscerate a Democratic president because he doesn't follow in lock step with the privileged white male pundits who attempt to dictate opinion on the left for their own personal political agendas.  I see DKos as dominated more and more by writers who blindly follow the lead of the leftist punditocracy and refuse to consider any other viewpoint.  

      •  I agree... (1+ / 0-)
        Recommended by:

        It is just so unfortunate that the punditry class and their followers do not truly understand how out of touch they are, all the while projecting "elitism" on to the President.

        I think many are just so used to oppositionalism (h/t Brit) that they have no other go to MO in the bag so they blindly strike out.


        I for one am tired of pandering to perpetrators --- many of whom are opposed to any discussion however it comes. -- soothsayer99 DPK Caucus

        by princss6 on Tue Mar 22, 2011 at 07:26:41 AM PDT

        [ Parent ]

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