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March 24, 2011
Obama's Illegal War
The whole notion that the President can unilaterally enter into unprovoked hostilities without first consulting Congress and receiving at a minimum legislative authorization is arguably false. The National War Powers Act of 1973, oft cited as granting the President such powers, offers no such relief.
As stipulated by the Act, at least one of three conditions must be met prior to the President sending armed forces into ongoing hostilities or into situations where hostilities are likely to occur.
(1) a declaration of war
(2) specific statutory authorization
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
None of these three conditions were met before the President attacked Libya. In fact, there are serious concerns whether President Obama even bothered to consult congressional leaders before making his announcement to commence strikes against Libyan forces.
But even if Obama had met with legislative members and discussed a plan to launch attacks, that still would not have satisfied any of the requirements necessary to enter into hostilities in Libya.
Since there was no attack or even the anticipation of an imminent attack against United States, its territories or possessions, or its armed forces, the President is bound by the Constitution and the War Powers Act to receive congressional approval beforehand. This would require a declaration of war or specific statutory legislation passed by both houses of Congress authorizing the introduction of armed forces into hostilities.
It is important to understand the War Powers Act of 1973 was never intended to circumvent Congress's power to declare war. Nor does the Act permit involvement in hostilities unrelated to a national emergency without congressional authorization. Instead, the Act was intended to establish a cooperative procedure by which the President as Commander-in-Chief and Congress could exercise their constitutional powers and to "insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities."
Only in the extraordinary situation where an attack against the United States, its territories or possessions, or its armed forces has already occurred does the President have the authority to introduce armed forces into hostilities without congressional approval. And even with this one exception, it is mandated "the President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities."
The information required of the President is specific. "In the absence of a declaration of war, in any case in which United States Armed Forces are introduced," the President shall provide and report to Congress information regarding:
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement
"such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad."
Any argument implying the President lacked time, ability, or even the requirement to inform and receive the appropriate authorization from Congress prior to bombing Libya is misinterpreting the meaning and intent of this Act.
And based upon the stunned reactions from vacationing congressional representatives on both sides of the aisle, they clearly did not receive any of the above information prior to the decision to attack.
Once again Congress has been relegated to the status of helpless bystanders watching a rogue President who feels more accountable to the United Nations, NATO, the pantsuit advisory coalition, and the Arab League than to the American people, the Constitution, or public law.