US War in Libya Unconstitutional?

[Coito ergo sum]

A hard-core group of liberal House Democrats is questioning the constitutionality of U.S. missile strikes against Libya, with one lawmaker raising the prospect of impeachment during a Democratic Caucus conference call on Saturday.

Reps. Jerrold Nadler (N.Y.), Donna Edwards (Md.), Mike Capuano (Mass.), Dennis Kucinich (Ohio), Maxine Waters (Calif.), Rob Andrews (N.J.), Sheila Jackson Lee (Texas), Barbara Lee (Calif.) and Del. Eleanor Holmes Norton (D.C.) “all strongly raised objections to the constitutionality of the president’s actions” during that call, said two Democratic lawmakers who took part.

Read more: http://www.politico.com/news/stories/03 ... z1HEeT05WY

Yes, according to some Democrats, most notably Dennis Kucinich.

Congress hadn’t been formally consulted before the attack

[redunderthebed]

surely the prez is the commander in chief and as such can do within reason what he wants?

[Coito ergo sum]

surely the prez is the commander in chief and as such can do within reason what he wants?

The American Constitution places the power to declare war squarely within the purview of Congress. During the Iraq and Afghan wars, there was a lot of noise made about how the war was illegal because there was no declaration of war.

[.Morticia.]

A good distraction isn't it, to talk about the legality of war rather than the morality of war. :wink;

[Warren Dew]

The American Constitution places the power to declare war squarely within the purview of Congress. During the Iraq and Afghan wars, there was a lot of noise made about how the war was illegal because there was no declaration of war.

Except in the case of Iraq, Congress did actually pass a law authorizing use of force.

I think the present case is borderline. Committing combat troops without congressional leave would clearly be unconstitutional.

[FBM]

But it's not a US war in or on Libya. The US forces are just fulfilling their commitments as part of a coalition of UN members.

[Coito ergo sum]

A good distraction isn't it, to talk about the legality of war rather than the morality of war. :wink;

Both are important issues.

Do you think the war is immoral?

[Coito ergo sum]

The American Constitution places the power to declare war squarely within the purview of Congress. During the Iraq and Afghan wars, there was a lot of noise made about how the war was illegal because there was no declaration of war.

Except in the case of Iraq, Congress did actually pass a law authorizing use of force.

I think the present case is borderline. Committing combat troops without congressional leave would clearly be unconstitutional.

Yes, in Iraq there was a resolution.

The thing about the war power provision of the constitution, it doesn't define a difference between ground troops and lobbing rockets from a ship off shore. Both are equally part of "war" and were so in the 1700s when the constitution was written.

HOWEVER, I think the key argument is that not all military action constitutes war, even the commission of ground troops and/or the power of the Congress to Declare War does not necessarily mean that the President has no power to do battle. Coincidentally, in Jefferson's administration we went to war against Libya (then Barbary state of Tripoli) without a Congressional Declaration of War. Jefferson sent the frigates to do battle and our ground troops fought in Tripoli, like the Marine song goes - from the Halls of Montezuma (when the US took Mexico City) to the shores of Tripoli.

So, it's a thorny business, to what extent does the President have authority to commit forces to battle without Congressional declaration of war, and to what extent does it matter that Congress has acquiesced or even assented to the military action without declaring war.

I think it's fair to say that since the US has committed troops to war about 200 times, and declared war less then 10 times, that it is not unconstitutional for the President to do what he's doing in Libya. I take that position regardless of who the President is.

[Coito ergo sum]

But it's not a US war in or on Libya. The US forces are just fulfilling their commitments as part of a coalition of UN members.

When US forces are in a war, it's a U.S. war. Just because we join in with other forces doesn't change that.

Countries aren't obligated to do what the UN says - I.e. - by joining the UN countries don't give up sovereignty, except to the extent AND ONLY TO THE EXTENT they agree to do so by signing and ratifying UN treaties and documents, and they are always free to make reservations and simply exit and end their agreements on a going forward basis.

[FBM]

But it's not a US war in or on Libya. The US forces are just fulfilling their commitments as part of a coalition of UN members.

When US forces are in a war, it's a U.S. war. Just because we join in with other forces doesn't change that.

Nor does your opinion change its international legal status.

Countries aren't obligated to do what the UN says - I.e. - by joining the UN countries don't give up sovereignty, except to the extent AND ONLY TO THE EXTENT they agree to do so by signing and ratifying UN treaties and documents, and they are always free to make reservations and simply exit and end their agreements on a going forward basis.

In other words, free to renege on their promises and cut and run once the shit hits the fan. Warm the bench and let the others do all the hard stuff.

[Warren Dew]

But it's not a US war in or on Libya. The US forces are just fulfilling their commitments as part of a coalition of UN members.

I don't believe the U.N. resolution required participation on anyone's part.

I think it's fair to say that since the US has committed troops to war about 200 times, and declared war less then 10 times, that it is not unconstitutional for the President to do what he's doing in Libya. I take that position regardless of who the President is.

According to Wikipedia, Jefferson's attack on the Barbary pirates was authorized by Congress; the cite isn't online so I didn't dig deeper, but I see no reason to doubt it.

I strongly suspect that many of the cases that didn't have congressional authorization were not constitutional. Presidents do unconstitutional things all the time when they want to and can get away with it.

[Coito ergo sum]

But it's not a US war in or on Libya. The US forces are just fulfilling their commitments as part of a coalition of UN members.

When US forces are in a war, it's a U.S. war. Just because we join in with other forces doesn't change that.

Nor does your opinion change its international legal status.

It's not my opinion. The US role in the Korean war was under UN auspices, but it was still a US war, and the legality of US involvement is government by US law.

Countries aren't obligated to do what the UN says - I.e. - by joining the UN countries don't give up sovereignty, except to the extent AND ONLY TO THE EXTENT they agree to do so by signing and ratifying UN treaties and documents, and they are always free to make reservations and simply exit and end their agreements on a going forward basis.

In other words, free to renege on their promises and cut and run once the shit hits the fan. Warm the bench and let the others do all the hard stuff.

Free to enter treaties, and free to end them, yes. Free to enter UN multilateral treaties and make reservations (statements that they agree to the treaty except for certain provisions), yes. However, once a treaty obligating a party to do something has been violated, it's violated. You can't retroactively back out of treaty obligations.

I don't know what you mean by promises and cutting and running once shit hits the fan or warming the bench while others do the hard stuff. Who are you referring to? Certainly that wouldn't be the US, which has been ridiculed over the last 10 years from not doing either of those things.

[FBM]

But it's not a US war in or on Libya. The US forces are just fulfilling their commitments as part of a coalition of UN members.

I don't believe the U.N. resolution required participation on anyone's part.

I'm not necessarily talking about legal commitments, just keeping their word about providing support for just causes, such as preventing the slaughter of civilians, etc, in order to protect and maintain whatever amount of integrity they still have. If they had voted for the resolution and then backed out of providing active support for it, that would seem a bit hypocritical. The UN already has a reputation for passing toothless resolutions.

Nor does your opinion change its international legal status.

It's not my opinion. The US role in the Korean war was under UN auspices, but it was still a US war, and the legality of US involvement is government by US law.

Until Congress declares war on Libya, legally it's not a war. It's support for a UN resolution, a police action or hostilities, a prelude to war, an armed humanitarian intervention, etc, but not war. Calling it a US war is rhetoric, and makes it look as if the US alone decided to take action in Libya. IIRC, the French fired the first shots. As far as I know, they're not calling it a "French war". It is just your opinion, it seems. I've looked around the news sources and haven't been able to find a single reference to a US war in Libya. Point me to one?

In other words, free to renege on their promises and cut and run once the shit hits the fan. Warm the bench and let the others do all the hard stuff.

Free to enter treaties, and free to end them, yes. Free to enter UN multilateral treaties and make reservations (statements that they agree to the treaty except for certain provisions), yes. However, once a treaty obligating a party to do something has been violated, it's violated. You can't retroactively back out of treaty obligations.

What does the thing in Libya have to do with treaties?

I don't know what you mean by promises and cutting and running once shit hits the fan or warming the bench while others do the hard stuff. Who are you referring to? Certainly that wouldn't be the US, which has been ridiculed over the last 10 years from not doing either of those things.

Above, in my reply to Warren Dew.

[Gawdzilla Sama]

According to Wikipedia, Jefferson's attack on the Barbary pirates was authorized by Congress; the cite isn't online so I didn't dig deeper, but I see no reason to doubt it.

I strongly suspect that many of the cases that didn't have congressional authorization were not constitutional. Presidents do unconstitutional things all the time when they want to and can get away with it.

http://www.ibiblio.org/pha/USN/

[Coito ergo sum]

I think it's fair to say that since the US has committed troops to war about 200 times, and declared war less then 10 times, that it is not unconstitutional for the President to do what he's doing in Libya. I take that position regardless of who the President is.

According to Wikipedia, Jefferson's attack on the Barbary pirates was authorized by Congress; the cite isn't online so I didn't dig deeper, but I see no reason to doubt it.

No declaration of war was issued, and they only sort of de facto authorized it.

I strongly suspect that many of the cases that didn't have congressional authorization were not constitutional. Presidents do unconstitutional things all the time when they want to and can get away with it.

There is no constitutional provision authorizing the Congress to authorize wars, only to declare them.