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Obama Flouts the War Powers Resolution

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NATO announced that the Libyan intervention will be extended for another three months. So what President Obama said would be a matter of days, not weeks, will in fact last many months. It’s safe to assume that Western powers will be meddling there a year from now.

One thing we know for sure, however, is that the U.S. intervention is doubly illegal. Obama had no legal authority to enter the war, and given that he entered it anyway, the 1973 War Powers Resolution required that on May 20 — 60 days after the intervention began — Obama either procure authorization from Congress or cease all operations.

He asked for a resolution, but Congress has not complied. In fact a bipartisan move is afoot to demand withdrawal from Libya. The Republican leadership blocked that resolution from a vote. So Obama is prosecuting a war without congressional approval beyond the 60-day limit. That’s illegal.

The founders of this country were concerned about warmaking. Thus, the Constitution gives only the Congress the power to declare and appropriate money for war. But since 1942 no president has asked Congress for a declaration of war. (Blank-check “authorizations” don’t count.) The War Powers Resolution was a half-hearted attempt to restore some measure of congressional authority over warmaking. But no president has accepted it, and members of Congress generally have been scared to resist a president.

So presidents have repeatedly gotten away with lawlessness. As Glenn Greenwald notes, that does not make new violations lawful.

Under the War Powers Resolution a president can commit troops to combat on his own say-so only in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Thus the Libyan intervention is illegal.

What does the administration say? “[The] President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest,” a Justice Department Office of Legal Counsel memorandum states.

In other words, if a president judges a military operation in the national interest, he may on his own commit forces.

The only problem is that the War Powers Resolution forbids that.

What about the 60-day rule? According to the New York Times, “Administration officials offered no theory for why continuing the air war in Libya in the absence of Congressional authorization and beyond the deadline would be lawful.”

The closest we got to a justification came from Jay Carney, the press secretary, who said that the commentary about the Resolution “could fill this room, and none of it would be conclusive.” Even if that were true, the interests of the American people demand a presumption in favor of dispersed, rathen than concentrated, power.

The Times quoted the Harvard Law professor Jack Goldsmith, who ran the Office of Legal Counsel in 2003 and 2004, on the unprecedented nature of Obama’s action: “There may be facts of which we are unaware, but this appears to be the first time that any president has violated the War Powers Resolution’s requirement either to terminate the use of armed forces within 60 days after the initiation of hostilities or get Congress’s support.”

Some of the president’s allies argue that that the Resolution doesn’t apply because deadly drone attacks (which have killed noncombatants) and the U.S. supporting role for NATO don’t constitute warfare! But Secretary of State Hillary Clinton recently said, “Even today, the United States continues to fly 25 percent of all sorties. We continue to provide the majority of intelligence, surveillance and reconnaissance assets.”

That looks like war.

Some may wonder why Obama didn’t ask Congress for authorization, since he could surely have gotten it. Greenwald knows why: “The Obama White House is simply choosing not to seek it because Obama officials want to bolster the unrestrained power of the imperial presidency entrenched by [the Bush administration].”

It would behoove Obama to heed his own the words, spoken when he ran for president: “No more ignoring the law when it’s inconvenient. That is not who we are…. We will again set an example for the world that the law is not subject to the whims of stubborn rulers.”

We’re waiting, Mr. President.

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    Sheldon Richman is vice president of The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.