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90-Libya_gadaffi-1Today, the White House—at least through its press security—defended its policies in Libya, claiming no need to consult the House or Senate as the president is not declaring war against Libya.

As CNN reported today:

“We are not engaged in militarily-driven regime change,” White House Press Secretary Jay Carney told reporters. Instead, the administration is engaged in “time-limited, scope-limited” action with other countries to protect civilians from forces loyal to strongman Moammar Gadhafi. (CNN, March 24, 2011)

Is the Executive of the United States granted the constitutional power of a “time-limited, scope-limited” action? As I read the constitution (and I read it rather literally), it states that ONLY Congress has the power to declare war in Article I. Article II states that the president is commander in chief when the armed forces have been called into service.

So, is it war or not in Libya? Simply because Obama has no clear objective in fighting this “time-limited, scope-limited” action, should we simply give him a pass and let him use the military—manned by our children and neighbors, our precious national assets—for his ego, his will to power? From what I can tell, especially when Obama called in the orders to attack while traveling in Brazil, he gave no real reasons or justification for adding yet another war (or whatever you want to call it) to the two in which we’re already engaged, not to mention our defending countries throughout the world at this point with our post-WWII and Cold War bases.

Here’s the damage so far (as of Thursday afternoon, March 24, 2011):

For one thing, the fight is intensifying, not dropping off. On Sunday, the U.S.-led coalition flew 60 sorties over Libya; Monday it flew nearly 80; on Wednesday it flew 175. At this moment, American pilots are bombing and shooting at Gadhafi’s armor and artillery units on the outskirts of Libyan cities. Off the shores of Libya, a bevy of Navy ships and subs have launched over 160 Tomahawk missiles. (Daniel Larison, Obama Administration Lies at Dan McCarthy’s site,

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8 replies to this post
  1. Somebody should make a list of all the Presidents — it goes way back — who have ignored the fact that only Congress has the power to declare war. Presidents have tended to interpret broadly the obvious right of a commander-in-chief to repel an attack. But Congresses have let Presidents get away with this, because they want to avoid responsibility. Of course, by the time they are appropriating money to be used in these conflicts, they are at least giving consent for them to be continued. I know that doesn't quite get the toothpaste back in the tube.

    There is a legitimate question of what constitutes the need for a declaration of war, and what does not. I'd like to read something good on that narrow topic.

    (For instance, you can't say that the President is commander-in-chief only "when the military is called into service." In cases of an immanent attack, for example, it would be the President's obvious duty to repel the attack immediately, without wasting precious time consulting Congress. Another point is that it is certainly within the President's power to rearrange his military assets as he thinks fit — say, sending carriers to the Mediterranean. In this discussion, I think it would be valuable to note that only Congress has the power to issue letters of marque and reprisal — that certainly seems to imply that Congressional power is allowed to get into pretty specific details of military response. Still, the fact that there are unquestionably times when a President must act militarily without waiting for Congressional approval causes a difficulty that is worth examining.)

  2. Let me flesh out that question just a little: If the framers intended to give the President broad military power WITHOUT a formal declaration of war, WHY would they assign to CONGRESS the power of issuing letters of marque? These would not — at least as they were used in that age — require an appropriation of money from Congress. Why couldn't the commander-in-chief license privateers to attack people we don't like, and take some their bounty in payment? Yet the Constitution explicitly reserves that power to Congress.

  3. Hollingshead: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." If you don't like, recheck your history of the founding. If you have a different standard, name it.

  4. I realise that US presidents age fast in office but when I saw Mr Obama's photograph here and on, I was shocked until I realised that it was Col. Ghaddafy. That's a relief.

    The Constitution is certainly clear (Brad too!) about presidents waging war on their own say-so, but then again I suppose that the Framers anticipated war as various foreign low-lifes in poncy uniforms pitching up with their muskets and arriving slowly, but did not anticipate aerial attack, Pearl Harbour, etc. The technology of modern warfare may require swifter action in the 21st C than in the 18th – although I am pretty good with a muzzle-loading musket and might qualify as a Five-Minuteman if not the full Minuteman. Okay, maybe a Half-Hourman.

    What drives me to genuine despair (and the noble Brad too, from the sound of it) is how few Americans give a crap or even think that Constitutionality matters over 'trivial' incidents such as taking a 300-million-soul nation to war. If this mattered to them, think that someone would have amended the Constitution to stipulate when, after acting fast, the president needed approval to carry on with war? Then again, America has killed 50m of its own children since Roe-v-Wade, its government routinely engages in torture (a few miles from my home in Kabul, indeed), holds prisoners for a decade without trial, persecutes its own political enemies at home, tramples blithely upon whatever remains of state and community rights and on and on. There remains little left of a republic in The Republic and, as was in Rome, most people are content. And why shouldn't they be? Why, there's a football game on teevee and Domino's still deliver pizza…

  5. No, Brad, you can't say he is Commander in Chief only "when called into service." Look at the very sentence you cite: He is ALWAYS Commander in Chief of the Army and Navy of the United States. He BECOMES Commander in Chief of the militia when they are called into service of the US.

    Otherwise, under what authority does the President repel an attack on our borders? Does he wait for Congress to declare war? Of course not. Because he is already Commander in Chief.

    I agree that the President should have sought Congressional approval before firing on Libya. What I was trying to start a discussion about was how to think through the principle of needing speed in military responses. (Federalist 70: That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.)

    As case in point, take our LAST attack on Libya, in 1986. I think that strike was an ordinate response to an attack on American citizens. When it didn't work, I think it was unfortunate that we didn't try again (though I know it caused a diplomatic firestorm). Perhaps President Reagan thought he had made his point, and finishing the job wasn't worth the diplomatic damage.

    Or did the 1986 attack ALSO constitute an ultra vires attack on Libya? Should President Reagan have sought a Congressional declaration of war before carrying out that attack?

  6. Steve Masty, I laughed so hard at your reaction to the picture of Gaddafi. He's not a handsome man, poor fellow. But, then, I don't think Obama looks real. He has a Ken doll, plastic quality to him. Thanks for the good thoughts–much appreciated.

  7. Steve Hollingshead–ok, I see your point, and I shouldn't have responded with such crankiness last night. My apologies. I don't have the Federalist Papers or Madison's notes (which I would guess would be much more revealing; but maybe not) on me, as I'm traveling with my family on spring break. I have never read (or taught) the Constitution with your interpretation. I will certainly give all of this a second look when I get back to my library. I still think Obama has abused his authority, significantly. Even if the president is always commander in chief, the Founders never meant for him to get us into a war or even a conflict where our national interests are not completely at stake.

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