Article: A War Powers Challenge to Obama's Libya Project

From The Nation

President Obama failed to seek a declaration of war before ordering US attacks on Libya. Now, he faces a challenge under the War Powers Resolution.

By any reasonable reading of the Constitution, that was a violation of the provision in the founding document that requires the executive to attain authorization from Congress before launching military adventures abroad. But presidents have skirted that requirement in recent decades by claiming that the 1973 War Powers Resolution -- an act originally intended to constrain presidential war-making -- affords them the freedom to fight first and consult Congress later.

The War Powers Resolution, enacted in the late stages of the Vietnam War over a veto by President Richard Nixon, requires the commander-in-chief to notify Congress within 48 hours of committing armed forces to military action that he or she determines is necessary in the face of "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." The resolution also forbids armed forces from remaining in action for more than 60 days without Congressional authorization of the use of military force.

That's not supposed to be a blank check for White House wars of whim, even if successive presidents have relied on self-serving interpretations of the law to launch and maintain military endeavors.

This week, however, a leading critic of the Libya mission, Ohio Congressman Dennis Kucinich, is planning to introduce legislation -- pursuant to the War Powers Resolution -- that will assert the constitutional responsibility of Congress to make decisions about declaring war.

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In a letter to fellow members of the House, the Ohio Democrat writes:

"Dear Colleague: Earlier this month, President Obama made his case for U.S. participation in a United Nations-sanctioned war in Libya. The President's Office of Legal Council recently released the Administration's legal justification for the war, arguing that he was not required to come to Congress for prior authorization because the war is in our national interest and because it is not really a war. But our actions in Libya and the Administration's failure to seek authorization from Congress, as required by Article 1, Section 8 of the Constitution, cannot be justified.
"I intend to offer legislation pursuant to the War Powers Resolution of 1973 that will address Congress' constitutional responsibility to make decisions pertaining to the use of U.S. military force abroad. Doing so will allow Congress the latitude to make an informed decision under circumstances in which Congress's predictable desire to support the troops does not skew the debate on the war's legitimacy.

"The costs of this war are already mounting. According to figures recently released by the Pentagon, the war has cost the U.S. $608 million thus far, not including the costs to deploy U.S. Armed Forces to participate in the war in Libya. Experts at the Center for Strategic and Budgetary Assessments believe that the U.S. costs could "easily pass the $1 billion mark"regardless of how well things go.' If U.S. "humanitarian intervention' in Kosovo is a precedent, we know that the U.S. will continue to bear the majority of the cost of military and post-conflict costs, with the U.S. contributing 25% of the North Atlantic Treaty Organization's military budget. During the Kosovo conflict, the U.S. spent $2.8 billion fighting the war, and another $2 billion to replace the munitions it used over Kosovo.

"While we may not all agree on the merits of military intervention in Libya, we can all agree that Congress must have the opportunity to have a full and ample debate on the commitment of U.S. Armed Forces to a war abroad. The Constitution is clear: Article 1, Section 8 provides only Congress with the ability to declare war or authorize the use of military force. This institution cannot stand by idly as a war of choice with significant ramifications for our national and economic security is waged in the name of our national interests."

That closing paragraph makes the key statement: "While we may not all agree on the merits of military intervention in Libya, we can all agree that Congress must have the opportunity to have a full and ample debate on the commitment of U.S. Armed Forces to a war abroad."

Democrats and Republicans, conservatives and liberals, swear to defend and abide by a Constitution that gives Congress, not the president, the power to declare wars. That oath demands that they reassert the role of the House and Senate in maintaining the system of checks and balances that the founders outlined "to chain the dogs of war."