If you have followed the non-Anthony Weiner news in recent days, or looked at the rec list in the last day, you know there is a vigorous debate on our role in the Libya conflict. The arguments focus on whether the President's actions in Libya are constitutional, or whether the actions are in line with the War Powers Act. I think the constitutional arguments are fascinating. I have long studied them, both in law school and in a master's program, where I took classes from Pres. Clinton's legal advisers on the issue of the President's powers in this area. I have my own opinion, which I will express here, but really I think it is a question without a clear legal answer.
For all the debate on the constitutionality of the President's actions, and the timeline in the War Powers Act, I think most are missing the really key point. What is being missed in the debate here is that the War Powers Act is, itself, unconstitutional.
First, for those who claim that the President has no power to initiate the use of armed forces, look at the War Powers Act itself. The War Powers Act requires the President to notify Congress within 48 hours of committing armed forces to military action. Clearly, even the Congress appreciated that the President did have the authority to use American armed forces, without getting prior approval.
I would argue that the Senate's ratification of the UN Charter and the NATO Charter committed the US to supporting the decisions of the UN Security Council and/or NATO, even militarily. Back in the dark days of the Cold War, this was not even seriously questioned. It was assumed that if the USSR initiated some hostilities in Europe, the US was treaty-bound to participate in the defense of its European allies -- and that this could become an all-consuming war like none ever seen before, all of which would probably occur before the Congress could even convene to discuss.
The President's power to use our armed forces cannot be limited just to cases of self-defense, regardless of whatever the understanding of the founding fathers. Anyone trying to argue "original intent" here, should be awfully wary of making that argument. No serious progressive would accept that argument with respect to the "privacy" line of cases that established the rights to contraception, to abortion, and to to consensual sexual acts. No serious progressive would think that "original intent" should define our current understanding of equality, and shouldn't preclude mixed-race marriages or even same-sex marriages.
The changing technologies of armed conflict, and the rise of international security organizations have radically transformed our understanding of what is a "war". International police actions and humanitarian interventions weren't even contemplated by the framers. Indeed, they would not have been logistically possible. Congress was given the power to "Issue Letters of Marque and Reprisal" because, back then countries exchanged theses letters weeks or months before they could deploy their forces into combat, Now, we can do all this in hours. It would be ridiculous to impose the same, archaic rules on modern conflict situations.
The War Powers Act was an effort to update the Constitutional legal framework to deal with the new realities posed by our modern world. Congress recognized the President could send forces into conflict without a declaration of war. Indeed, the Congress understood that our treaty commitments probably would require such actions at some point, possibly even from time-to-time.
The War Powers Act was an effort to put Congress back in the picture. Unfortunately, it doesn't even require Congress to go on the record. The Act purports to require the President to terminate the hostilities if he cannot or does not get Congressional authorization to continue use of armed forces beyond 60 days (or 90 days in extreme situations). This is an unconstitutional legislative veto.
To be sure, no decision of the Supreme Court has invalidated this provision of the Act. In INS v. Chadha, though, Justice White did write that this portion of the Act probably did violate the Presentment Clause of the Constitution. This clause requires Congress to take affirmative votes, not to set up some automatic mechanism in lieu of actually voting, or conferring their authority on some other official, as was done with the type of legislative veto addressed in the Chadha case.
I know the President would not want to precipitate a constitutional crisis by declaring that the provisions of the War Powers Act do not apply because they are unconstitutional. The political costs of provoking such a constitutional criss would be enormous and unnecessary. That is why the President gave a rambling, vague report to Congress on Libya yesterday. He does not want to challenge the Act, so he offered a plausible argument that the situation no longer fits under the Act's notion of "hostilities." By fudging the issue he hopes to give himself room to operate and to give Congress some basis for moving on.
Similarly, I do not expect that the courts would take the Kucinich lawsuit and declare the President's actions in Libya to violate either the Constitution of the War Powers Act. It is what the courts have long called a "political question." The courts cannot order a remedy. If Congress believes the action is wrong or that it usurps their prerogatives, they have their own remedies, They can go on the record and cut off funding for the Libya operation, or they can bring impeachment proceedings against the President.
Considering the moral and strategic correctness of our actions in Libya, I hope that the Congress would not make the mistake of acting to end the operation. We are preventing a massacre of freedom fighters and of those civilians who just happen to be caught in the conflict zones. So, it is the moral, ethical thing to do -- a clear case of justifiable humanitarian intervention. We are responding to indiscriminate and illegal acts of violence and sieges against an oppressed population.
We also gain favor among the newly democratic Arab world by standing up to this mad dictator. In the end, we hope to produce the conditions for a more stable, more friendly and more dependable regime in a vital region, so it is in our national interest to assist in putting pressure on Qadhafi and supporting the opposition. For those who argue that there is something wrong with one humanitarian intervention when we pick and choose in which countries we will intervene -- I say just because national interests figure into the decision does not invalidate the necessary, justifiable humanitarian legal basis for the action. Given the financial costs of a military action and the very real prospect that we are asking American servicemen to put their lives on the line, it is reasonable to draw some line based on national interests. The humanitarian need justifies the action under international law, but politicians must also justify the action to the soldiers and their families based on some national interest. I think the crisis in Libya satisfies both conditions.
If this intervention comes to a vote, I would hope Congress would support the President. What Congress should not do, however, is avoid such a vote and insist that the War Powers Act itself sets some arbitrary time-clock that will automatically end our operations over Libya. It is not just morally reprehensible, it really is unconstitutional.