Patterico's Pontifications

3/21/2011

This Illegal War

Filed under: General — Aaron Worthing @ 12:56 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Update: See the end for the opinion of a Constitutional scholar you might have heard of.

Update (II): Lindsey Graham demonstrates his constitutional ignorance.

I glossed over this earlier today, relying on what my high school teacher and the New York Times said about the War Powers Act.  But after looking carefully at the Constitution, and the War Powers Act I can only conclude one thing: this war is illegal.

And let me start by saying that this has nothing to do with whether I support the idea of military action.  I do.  My chief complaint about this action is that it might be too little, too late.  And anyone who followed my twitter would see me say that I believed that we were missing a historic opportunity in our inaction.  But it is not enough to do the right thing under our Constitution.  We must do the right thing, the right way.

First, it is a war.  When our planes are dropping bombs on enemy armies, what else can one call it?  Even if it is unlawful, it is still war.

And it is not authorized by The War Powers Act which is codified as 50 U.S.C. § 1541 et seq. Just follow the link and use the “next” link towards the top to browse during the different sections.  Section 1541 states that the President can only go to war…

…only pursuant to:

(1) a declaration of war,

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Now I am not one of those kinds of constitutional formalists who says that the declaration of war has to be called a “Declaration of War.”  The constitution is about substance and not form and therefore the substance of a Declaration of War is to authorize the creation of a state of war between two nations where none previously existed.  A simple authorization to use force, for instance, qualifies.

But we don’t even have that.  Nor can we say that Gdaffy has attacked the U.S., our territories, or even our military, except for the reason that our military is attacking his country and the statute makes it exceedingly clear that this doesn’t count for self-defense purposes.

So it’s not authorized by the War Power Act.  But is it perhaps justified under the Constitution itself?

It would seem not.  First, of course, only Congress has the right to declare war.  This appears to be the only way our nation can create a state of war between our nation and another, where none previously existed.  We were not at war with Gdaffy before we invaded his territory and the state of war that exists is solely because of that invasion.  Again, this isn’t to say it is wrong, but it is being done the wrong way.  Congress would have every legal and moral right to declare “sic semper tyrannis!” and declare war on Libya.  But the President  does not have that legal right.

For instance, it is not altogether clear that the President could actually wage war on his own accord if we were invaded.  The Constitution states that it is a Congressional power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions[.]”  Arguably, that is exactly what the War Powers Act was all about.  But let us say for the sake of argument that by implication coming from provisions like the Take Care Clause and the fact that the constitution differentiates between the Militia, the Army and the Navy, that maybe the president has the implied power to at least deploy the army and navy in self-defense.  But nothing in the Constitution could be stretched to allow for a war of choice in a far-off land, where we were not attacked first.

And no, the U.N. resolution doesn’t provide justification, either.  The Constitution assigns the power to declare war to Congress and no treaty can abrogate that.

So what do we do?  I think we do two things.  First, we consider and if appropriate, pass an authorization of force.  I wish we would call it a “Declaration of War,” but that is not likely.  And then I think Congress should officially Censure Obama, for unlawfully starting a war.  I don’t believe impeachment should be on the table, but we should make it clear that if he dares to try this twice, impeachment will follow.  The President must be reminded that the decision to go to war is not his, or the United Nations’, but Congress’.  To do anything less would risk turning the Declaration of War Clause into a dead letter.

Hat Tip: Dustin.

Update: I forgot to add that the Constitutional-Scholar-in-Chief himself agreed with me, when auditioning for this job:

2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites — a situation that does not involve stopping an IMMINENT threat?)

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.

As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.

Thanks to SPQR for reminding me.

And the link comes to me from Marginal Revolution via Volokh.

[Posted and authored by Aaron Worthing.]

394 Responses to “This Illegal War”

  1. Aw jeez. That old piece of paper … again?

    C’mon guys, lemme eat my waffles.

    Barack Obama (9e3371)

  2. Obama already said that the President does not have the authority to do this without Congressional authorization.

    SPQR (26be8b)

  3. Hmmmm. Perhaps Mr. Obama signed a secret Executive Order? He’s been doing more of that lately.

    Or, perhaps he is relying on the Pelosi Doctrine: “Are you serious? Are you serious?” when matters of Constitutional concern are raised.

    navyvet (db5856)

  4. Meanwhile, in Brazil: time for another round of golf!

    navyvet (db5856)

  5. Or, perhaps he is relying on the Pelosi Doctrine: “Are you serious? Are you serious?” when matters of Constitutional concern are raised.

    Comment by navyvet

    LOL

    Dustin (c16eca)

  6. SPQR

    dang it, i forgot to put that part in.

    Aaron Worthing (e7d72e)

  7. Aaron, no more classic example of one of Obama’s statements becoming “inoperative”.

    SPQR (26be8b)

  8. What’s one more illegal thing to this Administration?

    Let’s get serious here.

    daleyrocks (9b57b3)

  9. Dustin

    Of course there is another legal doctrine known as the airplane doctrine.

    “Surely you can’t be serious.”

    “I am serious. And don’t call me Shirley.”

    Aaron Worthing (e7d72e)

  10. Will obama take enough time out of his busy statement to be clear?

    DohBiden (984d23)

  11. Do you speak jive?

    daleyrocks (9b57b3)

  12. Do you speak jive?

    No i don’t.

    DohBiden (984d23)

  13. I agree with this. As a policy matter, I think intervention in this fashion in Libya is a good idea. As a matter of American law, though, I think the President was required to get Congressional approval first.

    aphrael (836cba)

  14. Daley,

    I don’t speak jive, but i have a great rendition of Aretha Franklin’s Respect.

    Nun on a Plane (e7d72e)

  15. Well, aphrael, it appears that you and Obama agree … or, you did before the magic inoperative wand was passed over all of his statements before November 2008.

    SPQR (26be8b)

  16. le war is le illegal?

    Non!

    La plume de ma tante est sur la table de mon oncle!!

    Voyage voyage? … Oui?

    Non!

    let us part.

    happyfeet (a55ba0)

  17. Why do you refer to Obama as a “Constitutional Scholar” ? He’s taught some parts of the constitution, but has he done any scholarship?

    I can’t wait to have congressional republicans on our sunday shows complaining about Libya. Maybe they could defund the no fly zone?

    “Or, perhaps he is relying on the Pelosi Doctrine: “Are you serious? Are you serious?” when matters of Constitutional concern are raised.”

    Him, Pelosi, and Charles Fried (a scholar, I think).

    Kato (b5a79f)

  18. Obama es un idiota.

    DohBiden (984d23)

  19. Nuclear energy is deadly and is more worse than regular energy the same people saying this will whine when we suffer from shortages of electricty…………no they will find a way to blame this on the far-right as usual.

    DohBiden (984d23)

  20. >And then I think Congress should officially Censure Obama, for unlawfully starting a war.

    That was funny!

    Congress is standing in line to suck the guy’s c***, not pass a censure resolution.

    Thanks for the chuckle. It’s been a rough day.

    BDJ (72b0ed)

  21. that was crude even with the asterisk thingies

    happyfeet (a55ba0)

  22. Bawney Fwank is the go to guy to on c*** sucking.

    DohBiden (984d23)

  23. To be fair: Grenada & Panama did not fall into any such category (although Grenada had US hostages involved). Iran/Desert One was an attack on an embassy, so that passes, as does Reagan’s attack on Gadaffi (attack on US servicemen). Kosovo is a special case since the House failed to pass an AUMF (tie vote!), yet Clinton went ahead anyway and was impeached for something else.

    Every single president from Nixon (who vetoed and was overridden) to Obama has said that the WPA is an unconstitutional encroachment on the president’s authority.

    Yet, I think that it would have been a good idea to bring this up two weeks back while there was time, on the basis of a standby authority. But that would just have been competent, like when W did it.

    Kevin M (73dcc9)

  24. Kevin M., every single President has stated that the WPA was unconstitutional, but each also substantially complied to avoid a real legal controversy.

    However, here we once again, indeed I’ve lost count, found another of Obama’s “principles” that has been summarily and without notice abandoned. The Empty Suit(tm) sits in the White House.

    SPQR (26be8b)

  25. Oh, wait, Obama hasn’t said that. Yet.

    Kevin M (73dcc9)

  26. Obama is unconstitutional.

    People will be dead and starving before nuclear power proves to be a threat.

    DohBiden (984d23)

  27. okay, guys can we stop with the fellatio references?

    Aaron Worthing (73a7ea)

  28. Gaddafi handed all of his nukes over to Bush so now we can bomb him without having to worry about causing a nuclear problem. What a sucker!

    How does the US negotiate with despots to turn over their wmd’s after this?

    j curtis (f93997)

  29. SPQR, actually Clinton did not “substantially comply”, as he lost the AUMF vote in the House.

    Kevin M (73dcc9)

  30. Kevin M., they “substantially comply” by submitting reports that are not labeled as being in compliance with the War Powers Act but just happen to have all the req’d content.

    SPQR (26be8b)

  31. First, of course, only Congress has the right to declare war. This appears to be the only way our nation can create a state of war between our nation and another, where none previously existed.

    Thank you for phrasing it that way, thus acknowledging that a state of war can exist without a Congressional declaration. E.g. the Supreme Court said in the Prize cases that the Civil War started the moment the Confederacy fired on Fort Sumpter, even though Congress didn’t get around to declaring war until months later. A president can recognise that the USA is at war, and act on that fact, without Congress doing anything. Thus, on 11-Sep-2001, President Bush recognised that the USA was at war, and defined who the war was with: not just the individuals who were involved in the attack, not even just the organisations involved, but the entire international terror network of which they were part.

    Milhouse (ea66e3)

  32. To be fair: Grenada & Panama did not fall into any such category (although Grenada had US hostages involved).

    Grenada was not an act of war at all, since we were invited in by the Head of State, who in fact begged us to come rescue the island from the rebels who had taken it over. And Panama declared war on us, so no declaration on our part was necessary.

    Milhouse (ea66e3)

  33. milhouse

    that was precisely the line i was drawing, between creating a state of war, and recognizing one that already exists.

    Aaron Worthing (73a7ea)

  34. Gaddafi handed all of his nukes over to Bush so now we can bomb him without having to worry about causing a nuclear problem. What a sucker! How does the US negotiate with despots to turn over their wmd’s after this?

    That’s a ridiculous argument. There was no guarantee, open or implied, that he had an open license to do whatever the hell he wanted for the rest of his life, and we would never stop him!

    Milhouse (ea66e3)

  35. A.W. – Do you have a hard on about fellatio references? Just askin’.

    daleyrocks (9b57b3)

  36. One thing Obama could do, which would obviate the need for any sort of Congressional declaration, would be to withdraw the USA’s recognition of Gadaffi as the ruler of Libya. If he is no longer the government there, then our bombing his forces is not a war against Libya. Is it still a war against him? Or is it just a police action against an international criminal, no different than when the navy boards a pirate ship on the high sea? Indeed, Obama could even recognise the rebels as the true authorities in Libya, and call the bombing a favour we’re doing for the new government.

    Milhouse (ea66e3)

  37. Next on the Freedom List- Zimbabwe and North Korea. (The Koreans may be a tough nut to crack but we can do it!)

    Douglas Leaon (392f36)

  38. That’s a ridiculous argument. There was no guarantee, open or implied

    Never said there was. I’m saying that this action makes it clear that the US will bomb you after you hand in your nukes. Even without any provocation. We have no bargaining position anymore.

    Give it some time. It will sink in.

    j curtis (f93997)

  39. I’ll just add that it might not be a bad idea to rid ourselves of the possibility of negotiating with despots. Liberals would trationally disagree with that notion, I would have thought.

    j curtis (f93997)

  40. Where are all the lefties screaming how Obama is tearing up the Constitution?

    Oh, wait, they are hoarse from shouting that all through the 8 years of Bush.

    Are y’all telling me Obama didn’t address the U.N., or the Congress, or seek a AUMF resolution? How can that be when we all know he has such respect for the Constitution. You know, like getting his DoJ to honor court orders and respecting the 10th Amendment.

    retire05 (63d9af)

  41. milhouse

    no, that doesn’t work. the president, simply put, can’t start a war without congress.

    Aaron Worthing (73a7ea)

  42. Never said there was. I’m saying that this action makes it clear that the US will bomb you after you hand in your nukes.

    “Will”? How is that implied? We didn’t bomb him till now, and if he weren’t bombing the rebels we still wouldn’t be bombing him. We never gave him a lifetime free pass, and nor should we have.

    no, that doesn’t work.

    What doesn’t work? I suggested a way for him to continue bombing without it being a war. If Gadaffi is not the government of Libya but merely someone with a lot of planes, then bombing him isn’t war, it’s just target practise, which the CinC can order on his own initiative. And if we’re helping the Libyan government put down the rebel Gadaffi, then it’s certainly not a war.

    Milhouse (ea66e3)

  43. Gdaffy did not figure giving up his nuke program meant he couldn’t put down rebellions any more. He thought it just meant he couldn’t threaten us and assassinate our citizens and blow up any more of our civilian airliners.

    Now tyrants around the world know that if you want to be able to use the kind of force tyrants have always had to use to put down serious rebellions (vicious, relentless, brutal force against anyone in rebel held areas, including ‘civilians’), you had better have yourself some nukes to keep us off their backs.

    Give it a little thought. Put yourself in the vicious tyrant’s shoes, the one who is constantly worrying about getting hung by rebels.

    Roland (ab3879)

  44. We didn’t bomb him till now, and if he weren’t bombing the rebels we still wouldn’t be bombing him.

    Imagine the next negotiation:

    “But if I hand you my nukes, what will prevent you from bombing me like you did Gaddafi?”

    “Gaddafi bombed rebels. Just make sure you don’t use violence against any insurrection in your country and we won’t bomb you”

    “Wouldn’t the US use violence against an armed insurrection in the US?”

    “Yeah, but we’re not talking about the US.”

    “Um, let me think about it and get back to you”

    j curtis (f93997)

  45. Milhouse – We severed diplomatic relations with Iran in 1980. Can the President bomb the crap out of them without Congressional approval?

    daleyrocks (9b57b3)

  46. You guys seem to be arguing as if his nuclear development program was some sort of deterrent to our attacking him. On the contrary, at the time it was a prime reason why we might attack him. He didn’t give it up out of the goodness of his heart, he gave it up to stave off the prospect of our going in and taking it off his hands, and pulling him out of a spiderhole to boot. Remember, it was Saddam’s capture that made him cave. He had no reasonable expectation of receiving anything in return for giving it up, except immunity for having had it in the first place.

    You may as well claim that when a hostage-taker releases his hostages in return for being allowed to walk away from the scene, that he should be free to commit any crimes he likes from then on, and have immunity from arrest.

    Milhouse (ea66e3)

  47. Daleyhouse, what have diplomatic relations got to do with anything?

    Milhouse (ea66e3)

  48. Oops, forgot to close a tag there.

    Milhouse (ea66e3)

  49. always use the buttons above the comment section. then automatic closing.

    Aaron Worthing (73a7ea)

  50. And of course that should be daleyrocks, not daleyhouse. Don’t know how that happened.

    Milhouse (ea66e3)

  51. For instance, it is not altogether clear that the President could actually wage war on his own accord if we were invaded. The Constitution states that it is a Congressional power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions[.]” Arguably, that is exactly what the War Powers Act was all about.

    Oh, I do disagree most heartily. Please, please, see the Oath of Office. The president’s is the only one set out in detail by the Constitution:

    “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

    Preserving, protecting, and defending the Constitution may involve not waiting for Congress to get its act together.

    Fritz (ac48cc)

  52. More on my point from above. Lincoln’s Letter to A.G. Hodges:

    I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensabale means, that government — that nation — of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it. I could not feel that, to the best of my ability, I had even tried to preserve the constitution, if, to save slavery, or any minor matter, I should permit the wreck of government, country, and Constitution all together.

    Fritz (ac48cc)

  53. “Daleyhouse, what have diplomatic relations got to do with anything?”

    Milhouse – Correct me if I’m wrong, but I thought you were advancing that type of argument @35.

    daleyrocks (9b57b3)

  54. Grenada was not an act of war at all, since we were invited in by the Head of State, who in fact begged us to come rescue the island from the rebels who had taken it over

    Have any of the rebel forces headquartered in Benghazi asked for intervention? If so, that would be a parallel case.

    And btw, Qdaffy may not have nukes, but he is known to have a couple of tons worth of mustard gas.

    There is, btw, one significant different between Iraq and Libya: unlike Libya, Saddam was not actively performing massacres of Iraqis at the time of the invasion. He had massacred plenty of Iraqis, but not at the actual time of the invasion.

    kishnevi (cc1ec4)

  55. speaking of illegal wars there is not a word on the National Soros Radio homepage about the shocking new pictures of the American killbot slaughter of our friends in Afghanistan – I’ve refreshed three times! Nothing!

    When Abu Ghraib happened it was all National Soros Radio talked about for weeks and weeks and months and months. This was back when George Bush was president and the curious thing is – nobody had shocking new photos of anyone what got slaughtered like a pig at Abu Ghraib. So this is worse in that respect. Meaning the slaughtering. The slaughtering adds a new element what was heretofore lacking. So you would think that would make it sorta newsy.

    It’s very odd.

    And you know who else hasn’t mentioned the American killbot slaughter?

    Hot Air.

    Thank God for Mr. Drudge is all I can say jeez nobody tells me anything.

    happyfeet (ab5779)

  56. Not saying that he is the first, but since when has the law impeded the efforts of this administration ?

    Rodan (03e5c2)

  57. #52, I said nothing about diplomatic relations. I said that we could withdraw our recognition that Qadafi is the Libyan government, and either recognise no government at all, or else recognise the rebels as the government, either of the territory they control at the moment or of the whole country. None of which has the slightest thing to do with diplomatic relations.

    Milhouse (ea66e3)

  58. Yeah.

    As much as I agree with you that the cause of the war is just (who likes seeing civilians slaughtered from the air, and further, I believe the U.S. and other western powers have national security interests at stake insofar as supporting democracy is better for world peace in the long run, and it’s beneficial to show to dictators that massive slaughter of civilians will be punished, not rewarded) …

    … I also have to agree with you that it was not started in a legal way. I’d say the odds of Congress doing what you ask is about zero, but I believe they should anyway: censure Obama that is.

    As far as authorizing the war after the fact, well, I suppose I think that’s a good idea too since I would have supported it in advance.

    I’m Canadian and our system is different. Specifically, the Prime Minister has a heck of a lot of authority (with the acquiesance of our figurehead Governor-General) to deploy our armed forces, although they can be recalled by an Act of Parliament at a later time. Canada generally gets involved with:

    1. Peacekeeping, peacemaking, or both for humanitarian reasons
    2. (depending on our government and internal politics) Supporting the US, Britain, or both as a staunch ally, because it is in our own national interest to have you both as our ally, and also for reasons of familial and historical ties

    That said, I’m not sure if I agree with Harper flying planes over to support this action without consulting parliament. But his actions were legal, and as you’ve shown, Obama’s aren’t.

    What do you think realistically Congress will do over this?

    Christoph (8ec277)

  59. Why beat around the bus?. Obama is guilty of a war crime and usurped the powers of Congress. This is how dictators operate, one power at a time till you have a Congress that is impotent. It seems to me we are already there. Obama ignores states. He ignores federal judges and he ignores congress. He only listens to the UN. In effect he has turned the US into a UN plebiscite and conservatives seem to not care as long as a terrorist is brought down.

    Wayne (945417)

  60. fritz

    i am purposely punting on the question of self defense, because it is irrelevant to this. no one can claim this is a defensive war.

    Aaron Worthing (73a7ea)

  61. I would like to let everyone ponder these thoughts please.

    First off the legislation that everyone commonly refers to as the War Powers Act is in actuality called the War Powers Resolution of 1973. There is a distinct difference; the War Powers Act of 1941 and 1942 gave the executive department broad based powers to do things such as violate privacy laws with regards to Census Bureau data to locate enemy aliens, the rights to seize public property without recourse in the need of the National Emergency, and a establish or disestablish additional executive departments or executive reporting offices without consulting or even advising Congress. Both of the War Power Acts expired 60 days after the peace treaty was signed in 1945. Meanwhile the War Powers Resolution which stated that the Executive department had to consult with Congress within 48 hours after hostilities had commenced at a bar minimum. Otherwise within 60 days those troops in combat zone would have to be withdrawn and the last troops would need to leave 30 days after that 60 day period left. It also established that either the House or the Senate could defund the military mission unless Congressional approval was given or a declaration of war was granted.

    Now here are the problems as I understand it and again you all can point out where I am wrong. The first issue is the powers as laid out by the US Constitution. Under the “Treaty Clause” of Article II, Section 2, Clause 2 of the US Constitution it states that the Executive Department shall negotiate all treaties and then later on with in Article II it states that the Executive shall execute all laws on the books. In accordance with accepted common law in the United States, all treaties become federal law. So the treaties with the UN and enacting its resolutions (that are agreed to as part of a treaty and voted on a super majority in the Congress) are part of our federal law. Now as I understand it this is a very grey area of law, but as with most other things with regards to the US Constitution this grey was intentionally planned since it was figured that later generations would be able to smooth these sharp edges.

    I would also note that this is why the legality of the War in Iraq is iffy, but leaning towards legal since one would could tie everything back to the Authorization of Force of 1991 and the UN resolutions with regards to the removal of Iraq from Kuwait and the inability of the UN to declare exactly what peace would should have looked like, basically leave the war like the war in Korea as a cease-fire that was still be negotiated.

    Another issue is whether just one section of Congress can vote on a funding legislation and approve it over a veto from either the executive or even the other house. I would reference you to the USSC case commonly called INS vs. Chadha, and read the dissent from Justice White. Here is a link at a law database for your review, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=462&invol=919. Justice White’s dissent stated basically that Presentment Clause prevents either house solely from funding or defunding with a veto over-riding vote and have it become law. This has not been challenged by any of the Lawyers for the Department of Defense, simply because as I see it, they are willing to let sleeping dog lie and let the politicians argue over the politics of a war.

    Finally, there is the question over whether the War Powers Resolution vs. the War Powers Clause. Article 1 and section 8 states that Congress shall be enumerated to fund and support an Army but can’t appropriate funds for an Army at a time period of no longer than two years. So the question then becomes a situation where if Congress really wanted to it could just cut DoD funding bills to have only the DoD funded for incredibly short period of time (like only during the time of a war) after which they could defund the DoD so that it only had enough to maintain a standing force for upkeep of the bases and units. So it appears that the War Powers Resolution was strictly petty politics from the Congress not knowing what their rights and responsibilities up against what they viewed as an evil of the Nixon administration after it came out what appeared to be an illegal expansion of the Vietnam War after the Republic of Vietnam invaded Cambodia and Laos in 1971.

    So basically the War Powers Resolution is very sloppy written law since it seems to violate elements of the Constitution with regards to funding military operations and presenting funding bills to the executive department. It also appears that the Constitution itself seems to trip up on itself as to who is in charge of and who is actually in charge of the government; the executive or the legislative. Again this is how I view it and I am just a layman, if I have made any legal logical fallacies please feel free to point them out to me. I am willing to take the constructive criticism.

    [added spaces to make it more readable. –Aaron]

    Charles B (4f8b94)

  62. Why beat around the bus?. Obama is guilty of a war crime

    “War crime”?! I’m pretty sure you have no idea what that term means.

    Milhouse (ea66e3)

  63. war crimes mean you can never go to Switzerland ever again

    happyfeet (ab5779)

  64. nothing in the Constitution could be stretched to allow for a war of choice in a far-off land, where we were not attacked first.

    And no, the U.N. resolution doesn’t provide justification, either. The Constitution assigns the power to declare war to Congress and no treaty can abrogate that.

    As one of my professors once said to me, this is what you get when you let the lawyers tromp around in the hallowed grounds of political philosophy. I think you need to make a distinction between the state of war, declaring war, and making war.

    The President has a concurrent duty to determine whether we are in a state of war or not and what our responsibilities under our treaty obligations are. As Hamilton writes as Pacificus,

    The answer to this is, that however true it may be, that the right of the Legislature to declare war includes the right of judging whether the Nation be under obligations to make War or not—it will not follow that the Executive is in any case excluded from a similar right of Judgment, in the execution of its own functions.

    Where Obama has fallen short, and perhaps I just missed it, is to give to the American people, who are the ultimate judges, at least in a political sense, some justification for why he found it necessary to make war against Libya.

    Fritz (ac48cc)

  65. Aaron,

    Given that the forces so far engaged are of the Sea Services and the precedents in the Founders lifetimes of the Quasi War with France (etc.) there is a case to be made that what has so far happened is within the customary powers of the President. It should also be noted that every Administration since the passage of the War Powers Resolution has viewed the resolution as an un-constitutional infringement on the Constitutional Powers of the Executive.

    Rodney G. Graves (f12db5)

  66. It is entirely possible to conclude that Libya was in a state of war, prior to our bombing. Except that state of war did not involve us.

    JD (318f81)

  67. It is entirely possible to conclude that Libya was in a state of war, prior to our bombing. Except that state of war did not involve us.

    Unless we had some relevant treaty obligation.

    Fritz (ac48cc)

  68. This war along with nuclear radiation will lead to increased obesity won’t someone think of teh children.

    /Sarc

    DohBiden (984d23)

  69. happy

    > war crimes mean you can never go to Switzerland ever again

    On the other hand, Polanski showed that sexual predators are welcome!

    make (non-consensual and underage) love not war, right?

    er, probably shouldn’t joke about what an @$$ polanski is. But i can’t resist.

    Aaron Worthing (73a7ea)

  70. It wasn’t rape-rape it was just rape.

    /Whoopi Cushion

    BTW it is the old nuclear power plants that are unsafe the modern ones are safe.

    DohBiden (984d23)

  71. Unless? Are you privy to a treaty that nobody else is?

    JD (318f81)

  72. Unless? Are you privy to a treaty that nobody else is?

    The problem is that Obama hasn’t given any justification. What I’m trying to do is point out the principle that the Constitution gives the president a co-equal power to interpret our obligations under treaties and to take actions to preserve, protect, and defend the Constitution.

    Now, the practical application, and the problem, is that, as far as I know, we had normalized our relations with Libya.

    Still, we have certain treaty obligations with the U.N. and with NATO, which might give Obama the appropriate kinds of justification.

    U.N. Resolution 1973

    Fritz (ac48cc)

  73. Obama’s letter to Congress (full text).

    Obama writes,

    For these purposes, I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

    Fritz (ac48cc)

  74. Ya know why don’t the anti-war people call for obama’s arrest?

    DohBiden (984d23)

  75. pursuant to my constitutional authority to conduct U.S. foreign relations

    Wow, this dude is a brazen liar.

    Can you imagine if Bush had justified OIF as his authority to conduct foreign relations? This is so ridiculously out of step with Obama’s own recent claims about presidential power.

    They think the American people are too stupid to absorb the contrast in Obama’s national security positions. 2012 truly is the test where America will get the government she deserves.

    Dustin (c16eca)

  76. (2) specific statutory authorization, or

    As this is taking place under a UNSC resolution, and we are signers of the UN Charter, doesn’t have that force of law the way other treaties do?

    That does NOT say that the UN can order us to go somwhere. What it means I think is that if the Executive orders military operations pursuant to a UNSCR that we support, it does not initially need Congressional approval, although the time limits under the War Powers Act apply.

    I could be wrong, but that’s my opinion, feel free to criticize.

    deeplemeblues (a78b16)

  77. I do not see what justifies our intervention that would not apply much stronger to Iran and North Korea. Unlike the other two, Libya was not attacking us or providing weapons and support to those that are. Can someone point out what I am missing?

    If Chavez now gets the rebels in Columbia to attack the leadership there, can he invade or send planes to assist the rebels saying he is doing as we did to keep the Colombian government from using military force on it’s own people? We know he wants a socialist state there, how do we say he is wrong but we were right?

    Machinist (b6f7da)

  78. Comment by Wayne at #59

    I think this is clearly the important thing to Obama, that US actions fell in line with the UN and other nations. As said many times above with varying amounts of seriousness or sarcasm, he does not care what other branches of govt. or the American people think, nor does he feel compelled to go by a seriously flawed and inadequate document, even if his job description incudes keeping his opath to uphold it.

    As we know, he is not a leader. He is a Chicago-style political manipulator where he has power, and a smooth talking “make everybody happy” lightweight presence on the international scene.

    MD in Philly (c35f62)

  79. “It is entirely possible to conclude that Libya was in a state of war, prior to our bombing. Except that state of war did not involve us.”

    Oh, yes it did involve us. The United States has been attacked more than once by Libyan backed terrorists. Hundreds of Americans are now dead because of those terrorist attacks.

    We should have destroyed K-daffy then.

    We ought to destroy him now.

    Dave Surls (b9d2b6)

  80. Dave

    with respect i think you are confusing a just cause for war, with the existance of war. if qdaffy had attacked us in the last 5 years, if he even plotted against us, i hadn’t heard about it. i have no problem with a payback for pan-am 103, but i don’t believe he was currently engaged in war of any kind with us.

    Aaron Worthing (e7d72e)

  81. Forrest for the trees … (elmo beats that freakin dead horse again/wtf?) … Hussein, he ain’t even President [ Please (exclamation point) feel free to ignore the self link http://anechoicroom.blogspot.com/2009/08/point-of-no-return.html ]
    —————–

    (Most significant?) link from this morn’s Drudge (and most likely will default to: article for subscriber’s only).

    Gold key to financing Gaddafi struggle

    From link:

    The international community has hit Muammer Gaddafi with a raft of sanctions and asset freezes aimed at cutting off his funding. But the embattled Libyan leader is sitting on a pot of gold.

    The Libyan central bank – which is under Colonel Gaddafi’s control – holds 143.8 tonnes of gold, according to the latest data from the International Monetary Fund, although some suspect the true amount could be several tonnes higher.

    Those reserves, among the top 25 in the world, are worth more than $6.5bn at current prices, enough to pay a small army of mercenaries for months or even years.

    While many central banks hold their gold reserves in international vaults in London, New York or Switzerland, Libya’s bullion is in the country, said people familiar with the country’s activities in the gold market.

    Elmo (6e75b1)

  82. “with respect i think you are confusing a just cause for war…”

    No, I’m not the least bit confused.

    IMO, we do indeed have just cause to destroy K-daffy and his henchmen…and, that’s pretty much all I care about.

    A lot of Americans are dead permanently thanks to K-daffy and co., so I say…wipe him out. Should have been done long ago.

    “if qdaffy had attacked us in the last 5 years…”

    With all due respect to you, Aaron, there’s no statute of limitations when it comes to acts of war perpetrated against the United States as far as I’m concerned, nor is there a statute of limitations as far as the law is concerned.

    We make war on Libya, it’s totally justified, and it’s also totally legal (even if Obama’s rationale for doing it is complete baloney…which it is).

    Dave Surls (b9d2b6)

  83. We should destroy Che Daffy . . . just ’cause.

    Icy Texan (59f4d2)

  84. I’m of the opinion that the War Powers Act was an unconstitutional abrogation of powers by Congress.

    But the courts upheld it, and now, not surprisingly, the whole concept of Congress declaring war is just ignored by both Democratic and Republican presidents alike. Including this one.

    Unconstitutional? You bet.

    Kman (5576bf)

  85. Sorry, but, blowing away a petty dictatorship’s military infrastructure in order to hamper their efforts to slaughter their own citizens is NOT a “war”.

    It’s much more akin to taking a sharp stick away from a three-year-old while admonishing him to stop poking his little brother with it.

    Icy Texan (59f4d2)

  86. “I would also note that this is why the legality of the War in Iraq is iffy, but leaning towards legal since one would could tie everything back to the Authorization of Force of 1991 and the UN resolutions…”

    It wasn’t the least bit “iffy” because as you noted, there was an EXISTING UNSC resolution authorizing the use of force against Iraq, there was an EXISTING Congressional act authorizing the use of force against Iraq (before Bush II got another one just to be on the safe side), and furthermore, Iraq had engaged in countless acts of war against the United States, using both terrorist proxies and their military, which gives us the right under Article 51 of the UN Charter to use armed force in response.

    We were on rock solid legal ground then…and, we’re on rock solid legal ground now (not that I especially give a shit about international law, since it’s pretty much unenforcable when it comes to making us follow it…but, still it doesn’t hurt to do things in a lawful manner).

    Not only does everyone on planet earth know that Libyan backed terrorists and Libyan armed forces have attacked the United States, and murdered all kinds of US nationals in the past, but they’ve even formally admitted to doing so, and paid fat reparations.

    Unfortunately, cash reparations aren’t enough to satisfy folks like myself. We also demand K-daffy’s head on a pike as the price for peace. Once K-daffy and his henchmen, like that scumbag the Scots let out of prison a while back, are all dead under a hail of American Tomahawk missiles (some air strikes with napalm would also be nice…watching Muslim terrorists and despots burn like torches is good for the soul), then honor will be satisfied, the guilty will have paid, and our dead will be avenged.

    Until then, we ought to bomb the living crap out of Libya round the clock…and, it will all be perfectly legal, although it would be nice if Obambi would run this stuff by Congress first, just to make it look like he’s not a typical lowlife leftist dictator…for appearances sake.

    Dave Surls (b9d2b6)

  87. Dave

    > IMO, we do indeed have just cause to destroy K-daffy and his henchmen…and, that’s pretty much all I care about.

    I agree that we have just cause, but just because the president’s right doesn’t mean he gets to do whatever he wants. I value our constitutional safeguards for their own sake. This time the power to make war without congressional consent to kick down a tyrant we don’t like. but what about the next time, when the justice of the cause is more muddled?

    Aaron Worthing (e7d72e)

  88. Why should we not attack every dictator that abuses his people by our standards? How can we impose this Pax Americana on the world by force when we can’t compel our own leaders to follow the law or the Constitution?

    Machinist (b6f7da)

  89. I supported the attacks on Afghanistan and Iraq, but this attack on a person we have recognized for decades as the legitimate head of state seems like a dangerous new direction.

    Machinist (b6f7da)

  90. “but what about the next time, when the justice of the cause is more muddled?”

    Let’s cross that bridge when we get to it.

    For now, Obambi is launching strikes against a well known state sponsor of terrorism, responsible for the deaths of dozens of American deaths over the years.

    That totally works for me. Might as well enjoy it while it lasts.

    Dave Surls (b9d2b6)

  91. Kman,

    Take a look at my comment #61. The War Powers Act is a different act than the War Powers Resolution of 1973. The War Powers Act were stricken from public law 60 days after the peace treaty ending WW2 was signed in 1945. The War Powers Resolution in itself according to the studying that I have done in some college courses on legality of war, has not been challenged in court and may actually be unconstitutional on the basis that it removes the Presentment Clause of the US Constitution. The Presentment Clause outlines how a bill goes through to become federal law. Basically the War Powers Resolution authorizes just a single house of Congress to defund the military without approval of either the other house nor the executive being allowed to apply its veto powers. The War Powers Resolution has not, I repeat, has not been challenged in a court of law and only obliquely touched on in a totally seperate US Supreme Court Case commonly referred to as INS vs Chadha in 1983, where the dissenting opinion from written by Justice White asked whether or not the Presentment Clause could be unsurped by Congress like this. The DoD lawyers since the passage of this law has rightfully decided to let sleeping dogs lie and let the politicos make the case for or against further combat zone operations.

    Charles B (84ebcd)

  92. We make war on Libya, it’s totally justified, and it’s also totally legal (even if Obama’s rationale for doing it is complete baloney…which it is).

    Comment by Dave Surls — 3/22/2011 @ 5:19 am

    Read Article I of the US Constitution.

    You’re incorrect. Our founding fathers set up a government that required the say so of more than one man in order to make war. The war powers legislation was meant for emergencies, not revenge wars over something from decades ago. Obama is a little special in how he has so clearly endorsed this view that the President doesn’t legally have the power to do what he just did, but his hypocrisy is not the reason his action is illegal.

    You do not want the President to be able to send our troops into harm’s way, justified on a decades old grievance rather than a bona fide threat to the USA or congressional consent. You act as though one power abuse won’t lead to another.

    Dustin (c16eca)

  93. Also, Dave, as a practical matter in the war on terror, Obama’s war could lead to a Libya run by Iranian allies. They are pleased with what we’re doing.

    That’s part of the reason we should have congressional oversight. We should have congressmen asking generals and officials what the endgame is, and making criticisms if it’s not clear the result of a war will be favorable. That’s why Obama is avoiding this process. He does not want to elevate any GOP house members to a position of oversight over his war effort, even though that is explicitly their place in our constitution. He doesn’t want his extremely weak leadership exposed any more than it has been.

    Those who say that flying planes over another country’s territoriality and bombing them isn’t war should consider whether it would be an act of war of another country did this to us. Of course this is war.

    Dustin (c16eca)

  94. deeplemebus, a treaty cannot override the US Constitution.

    SPQR (26be8b)

  95. The LSM needs to go F their blow-up dolls.

    DohBiden (984d23)

  96. SPQR,

    Isn’t the 2/3rds approval needed from the Senate to ratify a treaty indicative of legislative intent with regard to our foreign obligations?

    In any case, doesn’t Obama’s action fall in Justice Jackson’s “zone of twilight” from Youngstown? After all, there are several political means available to Congress to reign in the president should they feel it necessary. Jackson writes,

    When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.

    I was trying to figure out if Missouri v. Holland was helpful, as the implication is that a treaty could overrule the normal operation of federalism, the 10th Amendment, a the police powers of the states, but I’m not sure.

    Fritz (ac48cc)

  97. more than one man in order to make war

    Dustin, could we be more precise? The Constitution may require more than one man to declare a war, but in order to make one, the President alone holds the field.

    Fritz (ac48cc)

  98. Fritz, I see what you’re saying. Indeed, yes, we need a single commander of the military for obvious functionality reasons, but it is a breach of the constitution to give the power to send the USA to war to a single person. It is critical to keep congress in oversight to some extent.

    Let’s think back to Hillary grilling Gen Petraeus over Iraq and the Surge. That was annoying, and yet it was good for our country that Bush’s admin had to account for its goals and in some way for its plan to get there. Similarly, when Bush sought his AUMF, he had to explain why, in detail, instead of just going because he wanted to.

    Yes, you’ve got a valid semantic correction, but I think my point stands.

    Dustin (c16eca)

  99. fritz

    i think youngstown is an interesting case to talk about, but here’s the thing. we aren’t in the twilight. the statute says the president can only go to war in those three cases. this is none of them, thus by that statute, the president is positively forbidden from going to war.

    Aaron Worthing (e7d72e)

  100. I know how to support the war on libya?

    Raise taxes on the rich right wingers /Sarc off

    DohBiden (984d23)

  101. Dustin,

    Look at the Treaties clause of the US Constitution and then the UN Particpation Act, http://www.yale.edu/lawweb/avalon/decade/decad031.htm. Which basically states that since we are in alliance with the UN, if they drag us off to war; we have to play since the executive has to act on all laws passed by the legislative. From the readings that I have done all treaties approved by the Congress become part of US Code. Ergo, and I could be mistaken, we go to war if the UN tells us to join. That is also why NATO is supposed to work and why there is a quibble about the defense treaties with other nations. Since they could drag us to a war without our input.

    Another legal question that few are debating is whether or not Africom Commander, currently US Army General Carter Ham, has a requirement to withdraw American Support if either the UK or the French (or the other allies) start to actively target Gaddafi. Review EO 12333 which forbids any member of the Executive department to knowingly or actively attempt to commit assisination against a foreign leader.

    Charles B (84ebcd)

  102. Charles, that’s an interesting argument, but it’s not constitutional. The legislature lacks the power to give its power to declare war to an entity beyond the USA, such as the UN.

    Also, I don’t think the UN or NATO are obligating her members to fight her wars. It’s not like Turkey is bombing Libya, is it? They don’t come down in New York and order the USA to deploy. They issue resolutions that Libya or whomever ignores. International law is flaky because nations must be sovereign. Our Constitution must remain a constitution, after all.

    I was mentioning that executive order earlier. What a mistake it is that we aren’t overtly targeting Qaddafi! But you’ve got a valid point.

    Dustin (c16eca)

  103. Another way to state my point is that the legislature’s treaty couldn’t change Article I’s clear language. Only a Constitutional Amendment can do that.

    The power to declare war cannot be changed to an entity other than the Legislature without an amendment to the US Constitution. The Legislature has used that power to allow the President to wage war in an emergency where the USA is in danger or has been attacked, which is the source of much confusion (though Charles clearly is well informed about this topic).

    Dustin (c16eca)

  104. Charles

    But no treaty can violate the constitution. If the U.N. passed a resolution that said that everyone criticizing the U.N. must be arrested, we would not be allowed, under our constitution to carry that out (thank God–I would be first to be locked up!). likewise, the UN cannot purport to command our president to go to war when the power belongs to congress.

    Aaron Worthing (e7d72e)

  105. Charles

    As for your large comment at 61, here’s a few points.

    First, the war powers act I am talking about in the post appears to be the same war powers resolution you are talking about. http://avalon.law.yale.edu/20th_century/warpower.asp in any case their language on when force is authorized is the same.

    > Meanwhile the War Powers Resolution which stated that the Executive department had to consult with Congress within 48 hours after hostilities had commenced at a bar minimum.

    Yes, but hostilities were not supposed to commence except in those three circumstances. Reporting to congress is nice, but he never should have started this without their consent.

    > I would also note that this is why the legality of the War in Iraq is iffy,

    Not true. we have a war powers resolution serving the purpose of a declaration of war before that war, and it was not just in the 1990’s, but also just before the war recommenced.

    And white’s dissent in chadha is not controlling law.

    And I really don’t understand your point with the war powers clause.

    > So basically the War Powers Resolution is very sloppy written law since it seems to violate elements of the Constitution

    I have deliberately punted on the issue of whether this law is constitutional or not, because it doesn’t matter. The president didn’t comply with it. and in the absence of the statute, nothing in the constitution allows this.

    > It also appears that the Constitution itself seems to trip up on itself as to who is in charge of and who is actually in charge of the government; the executive or the legislative.

    What you are calling “tripping up” is what I call “separation of powers.

    Aaron Worthing (e7d72e)

  106. I have deliberately punted on the issue of whether this law is constitutional or not, because it doesn’t matter. The president didn’t comply with it. and in the absence of the statute, nothing in the constitution allows this.

    YES.

    Exactly. I’ve seen a few people try to defend Obama by saying that law isn’t constitutional anyway. They seem to think Obama has more powers without this law, rather than fewer.

    Dustin (c16eca)

  107. dustin

    well, the other thing is that even if parts of this war powers act was unconstitutional, that doesn’t mean it all goes down, automatically. what vinson did in florida IS unusual, although i think it is called for in that case. the normal thing is to save what we can. and really viewed as you and i see the law, it really isn’t very radical. it just says either go to war with our permission, or if we are attacked. no other times. i think on balance the constitution does allow the president to defend american territory, and its debatable whether he can do it just to defend our troops abroad, i would lean toward saying he could do that, too. so what is supposed to be the great constitutional issue? i am missing it.

    Aaron Worthing (e7d72e)

  108. Trust me I wasn’t trying to defend the current Admin on this violation. Rather I was just trying to apply some knowledge gained in some classes on international politicking and international laws, along with Constitutional basics 101. I was just trying to see thier justification from the otherside. Basically being the devil’s advocate.

    Dustin, I appericate you correcting me on my logical leaps in some of the items with regards to the treaty clause and the legislative powers that are vested in the Constitution. Along with how the Constitution is the ultimate law of the land.

    Aaron,
    If I understand it the War Powers Clause, gives Congres and Congress only the right to declare war. However, if we read further into Article 1, Section 8. We see that Congress is authorized to do the following:

    To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

    To provide and maintain a Navy;

    To make Rules for the Government and Regulation of the land and naval Forces;

    To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

    That is part of the enumerated powers portion of the US Constitution. As I understand it the founding fathers put this in as a further check on the aggressiveness of the Executive, basically the Constitution had already allowed for defunding of overseas adventures by the fact that Congress could decided to only apporiate money for an Army or Navy only as long as they saw fit. This is why we saw until post American Civil War, a very small core of officers and enlisted members of both services. Congress only would increase the budget for both the Navy Department and the War department in conjuction with the decleration of war and usually those budgets were short termed. As I understand it in a few classes some of these budgets were only a year in length at a time or even less. So that if Congress felt that the executive was draining the nation’s finances via adventures then it could cut those adventures off at the knees by taking the money away from the operating budget.
    So if Congress already had the ability limit overseas adventures by drastically controlling the budget of the DoD (previously the War Department and Navy Department), then why did it have to pass the War Powers Resolution? This just appears to me that the War Powers Resolution then is a duplicating piece of legislation which accomplishes what exactly? Besides mandating that the executive shall appear in front of the Congress (and by extension the people) to explain why it is dragging this nation off to war.

    Congress has used the power in the Enumerated powers to influnce the first overseas adventure this nation was dragged into by an executive. See the Barbary Pirates War. It lasted from 1803-1805. After the first year with the capture of the Frigate Philadelphia, Congress started defund both the Army and the Navy to reign in Jefferson’s Folly as some of the opposing party viewed this war. It is interesting reading if you look up some of the book on this war, specifically the fights between the Executive and the Legislative over the seperation of powers.

    That is why I brought up the war powers clause vs war powers resolution.

    Charles B (4ea998)

  109. Just like the left on gorebull warming the left will act all hypocritical when it comes to this.

    DohBiden (984d23)

  110. So if Congress already had the ability limit overseas adventures by drastically controlling the budget of the DoD (previously the War Department and Navy Department), then why did it have to pass the War Powers Resolution?

    Your history is a little off, but I’ll let someone else step in there, if they want.

    The War Powers Resolution was passed in the Cold War era for a Cold War scenario (although, of course, in applies even outside the Cold War). Specifically this one: if the missiles from Russia are in the air, then Congress isn’t going to have time to convene and declare war. So the War Powers Resolution Act was passed to give the president some power to engage our armed forces without pre-approval by Congress.

    Kman (5576bf)

  111. “Read Article I of the US Constitution.”

    Yeah, I’ve read it a time or two. I’ve also noticed that we didn’t run things by Congress before we started fighting the Barbary Pirates, or the the Southern Rebels in 1861 (on account of our Congress wasn’t in session between April and July of 1861, so President Lincoln just went ahead and ran the war without their help for the first three months or so), nor did we run it by Congress every time we started duking it out with Indians on the frontier.

    For one thing, if we had to declare war on each and every Indian tribe every time we started fighting them, then all Congress ever would have done for over 100 years of this country’s existence would have been to debate on and vote on the desirability of fighting the Chippewas or Sauk and Foxes or whoever.

    On second thought, maybe that would have been a good idea. It would have kept the Congresscritters too busy to do all the damage they’ve done over the years.

    Most of the time, we don’t bother going to Congress before we start blasting, because doing so isn’t really practical, or just because some dolt, like Slick Willy, thinks he has all the answers and just doesn’t want to be bothered (and anyway, if Slick had gone to Congress BEFORE he started bombing the Serbs, it would have cut into his dicksucking sessions with Monica…and God knows, we couldn’t have that).

    That’s the truth, and it always has been, even in the days when the ink on the Constitution was still wet.

    Anyway, the Constitution doesn’t say that we have to declare war every time we fight, it just says that if do do so, Congress are the guys to do it.

    In this case, I think it would be better if the halfwit-in-chief would have consulted with Congress before he started tossing missiles around, but that’s just because he’s a feckless ass and he really needs to have some grownups around to hold his hand and point him in the right direction, so we don’t accidently bomb Switzerland by mistake.

    Dave Surls (b9d2b6)

  112. Kmart’s goat finally passed out.

    JD (3a6b36)

  113. Dave, it’s one thing to say it’s not unprecedented for a President to violate Article I of the US Constitution.

    It’s another thing to say that this somehow changes the constitution’s actual meaning.

    Dustin (c16eca)

  114. According to Paul Krugman known as Kman only bush needs congressional approval to go to war.

    DohBiden (984d23)

  115. But I wasn’t being flippant or trying to insult people to suggest they read the Constitution. I think it would be very helpful for people to carefully read the Constitution and consider the fact the legislature has more than a hands-off power over our nation going to war.

    Dustin (c16eca)

  116. Kman – It was super nice of Congress to override Nixon’s veto of the legislation, doncha think?

    daleyrocks (9b57b3)

  117. “But no treaty can violate the constitution.”

    Sure they can. Treaties are coequal with the Constitution. Both are the Supreme Law of the Land.

    We ought to change that by the way, since if a treaty says one thing and the Constitution says another thing, we won’t know which way to jump.

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”

    What Article VI ought to say is:

    The Constitution is the Supreme Law of the Land, and all laws and treaties must be in accord with the Constitution.

    We really need to amend that.

    Dave Surls (b9d2b6)

  118. According to Paul Krugman known as Kman only bush needs congressional approval to go to war

    How do you come to that conclusion based on what I wrote?

    Kman (5576bf)

  119. Everyone better hope some rebels in some no-name village north of the DMZ in Korea don’t revolt. It could start WW3.

    tehag (02d37b)

  120. Dave

    > What Article VI ought to say is:

    > The Constitution is the Supreme Law of the Land, and all laws and treaties must be in accord with the Constitution.

    But it does, just in different language. Let’s break it down. First, it says the constitution is supreme law.

    Then it says “the Laws of the United States which shall be made in Pursuance thereof” is also the supreme law of the land. Pursuant of what? The constitution. So if a law is unconstitutional, then it is not made pursuant thereof and thus it is not the supreme law of the land.

    Then it says “all Treaties made, or which shall be made, under the Authority of the United States” is the supreme law of the land.

    Now the difference in wording means this. A treaty is only made under the authority of the United States, if it is made in accord with its governing document. But this passage contemplates TWO governing documents: 1) the articles of confederation and 2) the United States constitution. So for a treaty to be valid it must be made under the authority of the articles, prior to the ratification of the constitution, or under the constitution after ratification. So at most that means that perhaps a treaty ratified under the articles of confederation that might conflict with the Federal Constitution, but it would still be valid under the federal constitution, but I have never heard of any treaty like that violating the constitution, and in any case that doesn’t apply to the UN.

    The government of the United States does not have the authority to bargain away the power to declare war, because the constitution doesn’t allow it. So even if the UN purported to have that power, in the United States it wouldn’t.

    Aaron Worthing (e7d72e)

  121. Sure they can. Treaties are coequal with the Constitution. Both are the Supreme Law of the Land.

    This is not the case. That’s the Eisenhower administration position, and it gets something very fundamental backwards (that the Constitution doesn’t grant rights, but rather protects them). That’s a bit beside the point.

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    Does the Congress have the authority to pass an unconstitutional treaty, under the constitution, Dave? Of course not. That’s plainly why Article VI is written this way.

    However, Dave has a very good point anyway. I would be happy to see an amendment make even more clear that unconstitutional treaties can’t be passed, or that political speech can’t be regulated, or that I have the right to own a gun to defend myself. There are a wide variety of pretty obvious constitutional issues that some would violate anyway.

    Dustin (c16eca)

  122. It is getting kinda hilarious that Aaron and I keep cross posting the exact same ideas.

    Dustin (c16eca)

  123. Did Teh Won’s notification to Congress specifically enumerate how the U.S. was threatened by the Libyan situation, you know, so it might fit conceivably under the War Powers Resolution thingy?

    daleyrocks (9b57b3)

  124. Because Kman you always never call out Obama for not getting congressional approval for this war.

    DohBiden (984d23)

  125. Did Teh Won’s notification to Congress specifically enumerate

    No.

    It vaguely alludes to ‘dangerous consequences’ of not reigning in the disaster, but in no way shape or form does he explain how the USA is in danger. I’ve bolded the relevant portions of the entire notification you mentioned.

    EXT OF A LETTER FROM THE PRESIDENT

    TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES

    AND THE PRESIDENT PRO TEMPORE OF THE SENATE

    March 21, 2011

    Dear Mr. Speaker: (Dear Mr. President:)

    At approximately 3:00 p.m. Eastern Daylight Time, on March 19, 2011, at my direction, U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya. As part of the multilateral response authorized under U.N. Security Council Resolution 1973, U.S. military forces, under the command of Commander, U.S. Africa Command, began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone. These strikes will be limited in their nature, duration, and scope. Their purpose is to support an international coalition as it takes all necessary measures to enforce the terms of U.N. Security Council Resolution 1973. These limited U.S. actions will set the stage for further action by other coalition partners.

    United Nations Security Council Resolution 1973 authorized Member States, under Chapter VII of the U.N. Charter, to take all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya, including the establishment and enforcement of a “no-fly zone” in the airspace of Libya. United States military efforts are discrete and focused on employing unique U.S. military capabilities to set the conditions for our European allies and Arab partners to carry out the measures authorized by the U.N. Security Council Resolution.

    Muammar Qadhafi was provided a very clear message that a cease-fire must be implemented immediately. The international community made clear that all attacks against civilians had to stop; Qadhafi had to stop his forces from advancing on Benghazi; pull them back from Ajdabiya, Misrata, and Zawiya; and establish water, electricity, and gas supplies to all areas. Finally, humanitarian assistance had to be allowed to reach the people of Libya.

    Although Qadhafi’s Foreign Minister announced an immediate cease-fire, Qadhafi and his forces made no attempt to implement such a cease-fire, and instead continued attacks on Misrata and advanced on Benghazi. Qadhafi’s continued attacks and threats against civilians and civilian populated areas are of grave concern to neighboring Arab nations and, as expressly stated in U.N. Security Council Resolution 1973, constitute a threat to the region and to international peace and security. His illegitimate use of force not only is causing the deaths of substantial numbers of civilians among his own people, but also is forcing many others to flee to neighboring countries, thereby destabilizing the peace and security of the region. Left unaddressed, the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States. Qadhafi’s defiance of the Arab League, as well as the broader international community moreover, represents a lawless challenge to the authority of the Security Council and its efforts to preserve stability in the region. Qadhafi has forfeited his responsibility to protect his own citizens and created a serious need for immediate humanitarian assistance and protection, with any delay only putting more civilians at risk.

    The United States has not deployed ground forces into Libya. United States forces are conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster. Accordingly, U.S. forces have targeted the Qadhafi regime’s air defense systems, command and control structures, and other capabilities of Qadhafi’s armed forces used to attack civilians and civilian populated areas. We will seek a rapid, but responsible, transition of operations to coalition, regional, or international organizations that are postured to continue activities as may be necessary to realize the objectives of U.N. Security Council Resolutions 1970 and 1973.

    For these purposes, I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

    I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action.

    BARACK OBAMA

    Dustin (c16eca)

  126. Dustin

    GMTA

    Actually, this is constitutional law 101.

    Aaron Worthing (b1db52)

  127. It is nothing short of an insult to our military that Obama’s danger justification is that without his action, the middle east “could” become more unstable.

    Can you imagine if Bush had justified OIF on identical grounds?

    Obama is a pure sophist with his most grave responsibilities.

    Dustin (c16eca)

  128. Dustin – Thanks. I knew he did not cover it, but thanks for posting that.

    This rush to war is just sooooooo unseemly compared to what Bush did!

    daleyrocks (9b57b3)

  129. “Also, Dave, as a practical matter in the war on terror, Obama’s war could lead to a Libya run by Iranian allies.”

    No doubt, something like that could happen. That’s a gamble you take, no matter what you do.

    Our intervention in WWII, essentially caused by the Japanese dicking around in China and our objecting to said dicking around, ended up with the Japanese being driven out…and the communists, an even bigger enemy than the Japanese then took over. That’s pretty much a mission not accomplished.

    That’s the way the cookie crumbles…and, there ain’t no guarantees in this wicked old world.

    However, despite our failure to implement a positive change in China, we did have the satisfaction of beating the living tar out of the Japanese in our war for revenge, as I think you would describe it, and that’s a hell of a lot better than just shrugging off all the Americans killed by the Japanese.

    Dave Surls (b9d2b6)

  130. “A treaty is only made under the authority of the United States, if it is made in accord with its governing document.”

    Unfortunately, Article VI doesn’t say that, though it should.

    That’s why it ought to be amended.

    Dave Surls (b9d2b6)

  131. Dave

    then what does the phrase “authority of the united states” mean? where does the US get authority but under the constitution?

    Aaron Worthing (e7d72e)

  132. I can definitely see someone saying that the Constitution gave extra Constitutional authority to a limited government of positive rights.

    This is completely absurd and impossible, but I can see someone saying that.

    Our form of government is Constitutional. What that means is that all authority comes from the Constitution. So if the government does anything that is unconstitutional, it was not done with legal authority. This is what authority means in a constitutional government.

    This is a very basic point, and if it’s not accepted, then our entire system is absurd and arbitrary. Just because some would operate that way (and indeed, we’re seeing that all the time) doesn’t mean it’s legal.

    Aaron didn’t title this post “This Impossible War” but merely “This Illegal War”.

    Dustin (c16eca)

  133. “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

    “As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.”

    I agree with Obambi right down the line.

    As long as the people who have ALREADY attacked us, causing the deaths of thousands of Americans, continue to exist, including entities like the governments in Libya and Iran there IS ALWAYS an imminent threat to the nation.

    It’s also better if our presidents consult with Congress, as Bush II did, because he was an exceptionally good president (which Obambi most definitly isn’t), before they start shooting, or before they start escalating the shooting which is what Bush II actually did in the case of Iraq.

    But, it isn’t the end of the world if they don’t, as long as they kill the right people when they start blasting. and, in this particular case, the Great Black Dope, by pure dumb luck, is actually drawing down on the right people, even if the reasons he’s giving are total hogwash, so good on him.

    Dave Surls (b9d2b6)

  134. ‘then what does the phrase “authority of the united states”’

    It means that the POTUS makes treaties, and the Senate ratifies them. Any treaty that doesn’t follow that proceedure is outside the authority of the United States. Any treaty made under that proceedure is a treaty made under the authority of the United States.

    Dave Surls (b9d2b6)

  135. Dave

    > It means that the POTUS makes treaties, and the Senate ratifies them. Any treaty that doesn’t follow that proceedure is outside the authority of the United States.

    There are [three] problems with that.

    First, why should they be required to obey one part of the constitution and not any other?

    Second, it doesn’t just say treaties “ratified following constitutional procedures.” It also says “authority.”

    Third, so according to your theory, if the president manages to ratify a treaty with Britain making him President for life of America, we have to obey that?

    [mmm, there were two problems with my ability to count. edited after the fact. –Aaron]

    Aaron Worthing (e7d72e)

  136. Dave

    I will add that this passage from marbury v. madison is on point, discussing whether any ordinary law is superior to the constitution:

    Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

    If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

    Why write a constitution at all if a mere treaty could completely change it? Indeed, what happens in your mind if the treaty purports to change the method of treaty ratification. Suppose tomorrow Obama goes to england and they work out a treaty that says from now on all treaties are ratified solely by the signature of the president. Then he gets that treaty ratified by congress. then the next treaty can be ratified simply by his signature?

    And if not, why not?

    Aaron Worthing (e7d72e)

  137. This isn’t a war.

    Leviticus (68eff1)

  138. Boom. Problem solved.

    Leviticus (68eff1)

  139. It’s a police action. Double-solved.

    Leviticus (68eff1)

  140. a very very spensive police action financed by the Chinese

    happyfeet (a55ba0)

  141. but if you have to look to a pitiful brokedick loser little country what can’t even secure its own borders for your police actions you’re in pretty sad shape

    happyfeet (a55ba0)

  142. Then send in the FBI to arrest Daffy – there is an outstanding arrest warrant for him after all. He can become Mr. Noriega’s cellie.

    Old Bob (07c536)

  143. Kman,

    Your statement of:

    The War Powers Resolution was passed in the Cold War era for a Cold War scenario (although, of course, in applies even outside the Cold War). Specifically this one: if the missiles from Russia are in the air, then Congress isn’t going to have time to convene and declare war. So the War Powers Resolution Act was passed to give the president some power to engage our armed forces without pre-approval by Congress.

    Is false, because if this was true then why wasn’t something similar passed in the late 1950’s when it was a Republican Controlled Congress, Ike was President, and the fear of the Communists coming over the North Pole to bomb us Captalistic pigs back so that the proletariat could take over and install a true people’s republic here?
    Could it actually be that the War Powers Resolution was petty politics from the 93rd Congress following the scandal that was the invasions of Laos and Cambodia along with the expansion of the target listing in Operation Linebacker II.

    I would also suggest that you take a study of this nation’s history prior to 1945 and the common international law decision with regards to right of self-defense, right to protect citizens and territory. This comes into play in places such as the Chesepeake-Lepoard Affair, the invasion of Mexico going after Poncho Villa, The Banana Republic Wars in Haiti and Nicurugua, the various anti-piracy patrols in places like the Carribean/South China Seas/Mediterriean/Mainland China Rivers, Somoa incident, the Pig War, and even the Neutrality patrols, etc. I would also note if you look at it historically with the US, there is also direction given by the National Command Authority on what the Rules of Engagement would be with regards to wars or even shooting incidents. Some of the fear that a pair of over aggressive captains out to sea would lead to WW3 lead to the “Incidents at Sea” treaty where basically after some ramming incident or “accident” the US and the Soviets would meet in either Helsinki or Geneva and then argue over monetary costs for replacement/repair/mental anguish. That is also why it was a big deal in 1981 when Reagen changed the rules of engagement from basically having to ask premission to something very similar to what the officer in your town has. That is the level of force ladder. Basically the US military under an encompassing ROE has the right of self-defense in international areas (water,air,space) if someone is showing aggressive tendencies and if they are armed. So unlike it was in the late 60’s thru to the 70’s, if a US vessel or aircraft had to wait until it was shot at to defend itself. Again to use the police analogy, basically all the aggressive party has to do is show they are armed and constantly manuver for a clear weapons shot for the local US commander to clear weapons release authority. See the US Navy F-14 vs Libyan AF Su-22 engagement fell under these ROE’s, so did the USS Vinncenes incident in 1988, and the other Libyan AF engagement in 1989, along with the sinking of the Libyan patrol boats in 1985. We were completely justified in accordance with understood international law to defend ourselves.

    Charles B (84ebcd)

  144. Our junior senator Mark Kirk was interviewed about this subject last night. He said, “if you’re dropping bombs it’s a war.” And then he turned his head to take the next question.

    elissa (bd4926)

  145. not if they’re bombs of love

    happyfeet (a55ba0)

  146. it’s far out man it’s odyssey dawn can you feel the vibe are you feeling it now

    happyfeet (a55ba0)

  147. #

    Boom. Problem solved.

    Comment by Leviticus

    I hope you’re joking, but I realize you aren’t.

    Would you think warplanes breaking into another country’s airspace and bombing them is an act of war?

    If we can simply assert new labels for everything, from speech to arms to searching to courts, then we don’t really have a constitution.

    Dustin (c16eca)

  148. Dustin, I think Leviticus is being facetious.

    SPQR (26be8b)

  149. Yeah, I’m kinda deaf to sarcasm today.

    Dustin (c16eca)

  150. One of our jets has crashed in Libya. Apparently the crew ejected safely in rebel territory. So it’s not a video game anymore.

    elissa (bd4926)

  151. Apparently the crew ejected safely from the plane, which had a simple mechanical problem, and some of the people who ran up to cheer them were shot by Marines rescuing the Airmen.

    One boy may have to have his leg amputated. I’m not blaming the Marines… they were trying to secure the area quickly, and in war, civilians near downed aircraft are in danger.

    Caveat: reports on this kind of thing can be wrong.

    But we should keep in mind that even with incredibly superior war machines like F-22s, some wire or bolt or seagull can go into the wrong place and result in a crash. Obama’s decision was serious enough to justify explaining the plan to congress.

    Dustin (c16eca)

  152. (the crashed plane wasn’t an F-22, btw)

    Dustin (c16eca)

  153. That crash of an American F-15E out of Aviano Italy, into the the desert around Bengahazi occured about 11:00Z 22MAR2011 or 0400PDT 22MAR2011/0700EDT 22MAR2011.

    While in the process of preforming the crew rescue elements of the US Marine Platoon that landed in Libya fired on Libyan Villagers, http://www.smh.com.au/world/marines-opened-fire-on-villagers-in-mission-to-rescue-crash-crew-20110323-1c5g1.html?from=smh_sb. Severely injuring 6 of them. One of the American aircrew was rescued by the US Marines and the other was picked up hours later from elements of the rebellion who found him in the desert.

    Charles B (84ebcd)

  154. Not exactly, SPQR – sort of, but not exactly. I am, in pointing out that this will never become an issue because it’s so easy to dodge by claiming that this isn’t a war; but I’m also trying to make the point that the word “war” is not by any means well-defined. See semantic shenanigans re: “prisoner of war”, Dustin – if we take someone prisoner while patrolling the Afghani countryside (where we are most assuredly dropping bombs, and therefore engaged in “war”) that person is presumably a prisoner, but not a “prisoner of war”. So if we want to use contorted definitions of “war” in the one case, we have to be ready to do so in the other(s).

    The whole “if we’re dropping bombs, it’s a war” argument makes a nice sound bite for Republican pols suddenly interested in strict constitutionality re: foreign affairs, but it doesn’t hold water – what’s the difference between a declaration of war and an authorization of force, for instance?

    Something being an “act of war” does not (as someone argued above) mean that we are in/going to war. We can have a good argument about the proper definition of war, I think, but it isn’t so clear-cut as saying that anytime a bomb explodes or even is dropped from a sovereign aircraft that two nations are “at war”.

    Leviticus (b987b0)

  155. As a starting point, I would volunteer that war necessitates a sustained attempt to kill enemies, and forgoes caution at their expense. This is the Balkans – we’re participating in a joint action to protect a vulnerable population from superior and merciless force. We weren’t at war with Yugoslavia or any of its component parts in the early Nineties, and we aren’t at war with Libya now.

    Leviticus (b987b0)

  156. #137

    Aaron, trust me on this one: that part of the Constitution needs to be rewritten so that it is absolutely, positively clear that like laws passed by Congress, treaties also need to be pursuant to the Constitution. It doesn’t say that now, and it really ought to.

    Just like it would be better if Obama would go to Congress and talk things over a bit BEFORE he starts heaving missiles around (because, frankly, he’s a complete nitwit, and he needs tons of guidance), it would be better if that part of Article VI was rewritten.

    Whatever the authors intended it to say, what it does say is is that treaties, along with the Constitution, are the Supreme Law of the Land, and it doesn’t specify that said treaties must be in accord with the Constitution.

    Needs to be changed…along with a whole lot of other things in the Constitution, including what we’re talking about here in regard to going to war. That needs to be expanded on and better defined so that we’re not constantly arguing about what presidents can and can’t do everytime there’s some kind of crisis, and also so that we don’t have to rely on the judgement of morons like JFK or Obambi when it comes to using our armed forces.

    Dave Surls (b9d2b6)

  157. Just as an aside, I was making assumptions about Leviticus’s POV based on other comments he’s made, so I guess that’s why I ‘knew’ he was making a serious point.

    I would volunteer that war necessitates a sustained attempt to kill enemies, and forgoes caution at their expense.

    That’s not what an act of war means.

    And I’m not sure I understand your point about ‘sudden’ concern about constitutionality from Republicans who, after all, were completely living up to the law in the run up to OIF and OEF with their AUMFs.

    Warfare requires congressional consent, Leviticus. That can be called AUMF or a more classical declaration of war, but it has to exist. Sure, the language changes from time to time, but the GOP did, in fact, live up to this in 2003. Their position today is not ad hoc or playing a game with national security, and I really think they deserve to have that recognized in context of certain democrats who absolutely are exposed as taking an absolute position on presidential powers then flipping completely when it suits their politics.

    Anyway, that’s neither here nor there. Whether someone broke the law in the past doesn’t change the law.

    Dustin (c16eca)

  158. Aaron, trust me on this one: that part of the Constitution needs to be rewritten so that it is absolutely, positively clear that like laws passed by Congress, treaties also need to be pursuant to the Constitution. It doesn’t say that now, and it really ought to.

    I have no problem with clarifying much of the Constitution, Dave, but there’s simply no logical way the constitution authorized unconstitutional actions. That’s what it means by clarifying terms like ‘authorized’, but it’s also implicit in the entire idea of a constitutional government with a clear amendment process.

    Dustin (c16eca)

  159. Leviticus brings up an interesting point. If one reads the history of the American Prisoner of War experiences in Vietnam, they all agree on the point that the North Vietnamese treated the aircrew captured as criminals in accordance on how they viewed some of the customary international law, the Hague and Geneva Convetions, and laws of war. The same sort of treatment and statements were used by the People’s Republic of China and North Korea during the Korean War in their treatment of UN prisoners of war as criminals in violation of international treaties then true POWs. In all situtations the US threw up the BS flag, but at the time the international law was murky and if I remember right still hasn’t been successfully solved (see the current debate over PW’s vs Enemy Combatants).

    Charles B (84ebcd)

  160. “We weren’t at war with Yugoslavia or any of its component parts in the early Nineties, and we aren’t at war with Libya now.”

    What absolute baloney.

    We were then, and we are now.

    Dave Surls (b9d2b6)

  161. Libya Libya gettin down on Libya
    everybody’s lookin forward to the war’s end

    happyfeet (a55ba0)

  162. “While in the process of preforming the crew rescue elements of the US Marine Platoon that landed in Libya…”

    What the hell. As long as we’re landing a few guys, might as well send in a couple of divisions, and dust off K-daffy once and for all.

    Just send 1st Infantry Division back over to Europe to reinforce V Corps, add in a few USMC units for flavor, and turn those bad boys loose.

    Bet we could pound K-Daffy’s Libyan losers into the ground in a week or two tops.

    Dave Surls (b9d2b6)

  163. Why do the left not oppose this?

    But oppose building new nuclear power plants so they can beat the anti-nuke drum?

    Oh wait i already answered my question.

    DohBiden (984d23)

  164. “I would volunteer that war necessitates a sustained attempt to kill enemies”

    Leviticus – How do you define sustained?

    daleyrocks (9b57b3)

  165. On the plus side, Obama has now launched more cruise missiles than all other Nobel Peace Prize recipients combined.

    We can all take pride in that.

    Some chump (4c6c0c)

  166. what’s the difference between a declaration of war and an authorization of force, for instance

    Nothing, at least in a legal sense. The Authorization for the Use of Military Force is exactly the same as a declaration of war.

    Go read previous declarations of war, say for WWI and earlier, and note how similar they are in wording the the more recent AUMFs.

    Some chump (4c6c0c)

  167. daleyrocks – 91 days.

    Leviticus (cf8ec3)

  168. 91 days and up, that is.

    Leviticus (cf8ec3)

  169. I suspect the Obama Administration will argue that this war is not illegal because it is a defensive action, not a war, under the UN guidelines. Here is my summary of that argument:

    1. Whether an action constitutes “war” isn’t an issue in the UN lexicon but “aggression” is. In 1974, the UN defined aggression. Here is an excerpt:

    ***
    Considering also that, since aggression is the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by the existence of all types of weapons of mass destruction, with the possible threat of a world conflict and all its catastrophic consequences, aggression should be defined at the present stage,

    Reaffirming the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial Integrity,

    Reaffirming also that the territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures of force taken by another State in contravention of the Charter, and that it shall not be the object of acquisition by another State resulting from such measures or the threat thereof,

    Reaffirming also the provisions of the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations,

    Convinced that the adoption of a definition of aggression ought to have the effect of deterring a potential aggressor, would simplify the determination of acts of aggression and the implementation of measures to suppress them and would also facilitate the protection of the rights and lawful interests of, and the rendering of assistance to, the victim,

    Believing that, although the question whether an act of aggression has been committed must be considered in the light of all the circumstances of each particular case, it is nevertheless desirable to formulate basic principles as guidance for such determination,

    Adopts the following Definition of Agression:[FN3]

    Article I

    Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.
    ***
    Article 6

    Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful.
    ***

    Thus, we turn to the UN Resolution on Libya to see whaether the actions authorized constitute aggression:

    2. In UN Resolution 1973, the UN Security Council authorized member nations and regional organizations to enforce a “ban on all flights” to “protect civilians” by taking “all necessary measures to enforce compliance with the ban”. It excludes occupying forces and defines the action as humanitarian, implicitly rejecting any claim that resulting military action constitutes aggression.

    In other words, it may look like war but it’s actually a UN-authorized effort to enforce the peace.

    DRJ (fdd243)

  170. it may look like war but it’s actually a UN-authorized effort to enforce the peace

    One effective way to bring peace would be to shoot everyone. No people, no war.

    Some chump (4c6c0c)

  171. I agree with DRJ. The US isn’t trying to kill anyone; we’re trying to prevent someone from killing others, and trying to minimize our own killing in the process.

    Leviticus (cf8ec3)

  172. And that’s not war.

    Leviticus (cf8ec3)

  173. In candor, I’m not saying I agree with that analysis but that’s what I think the UN and the Obama Administration would say. I’m not willing to cede jurisdiction to the UN, so I care more what US law says and I’m undecided on whether this is legal or illegal under US law.

    DRJ (fdd243)

  174. There is a HUGE difference between an Authorization for the use of Military Force and a Declaration of War. An AUMF can be simply granting letters of Marquee to merchants, it can be granting covert operations against a target like terrorists or some similar international terrorist group, or it can be outright hostilities. However, in accordance with how some of the international conventions apply, the opposing party may not feel a need to abide by rules and laws for treatment of PW’s, Civilians, respect to the IRC symbols, etc. While using a decleration of war from one side can hold both parties to subject to war crime trials if they choose to violate some of the Laws of War and various conventions like the Hague and Genevea Conventions.

    Charles B (4f8b94)

  175. “In candor, I’m not saying I agree with that analysis but that’s what I think the UN and the Obama Administration would say. I’m not willing to cede jurisdiction to the UN, so I care more what US law says and I’m undecided on whether this is legal or illegal under US law.”

    – DRJ

    Understood. I should say, “I agree with the U.N.’s distinction between war and force brought to light by DRJ in comment #171″.

    Leviticus (cf8ec3)

  176. “91 days and up, that is.”

    Leviticus – Fine. I’m glad to learn the Persian Gulf War was not a war.

    daleyrocks (9b57b3)

  177. “In other words, it may look like war…”

    Yeah, in much the same way that a duck looks like a duck.

    Dave Surls (529eea)

  178. I wasn’t trying to nit-pick with you, Leviticus. My concern is that President Obama’s sole focus seemed to be whether the UN and other nations were united. Once he saw a consensus had developed, he got on board. I think that’s consistent with what he promised to do during his Presidential campaign but a President should be concerned with American rules and interests first, and international rules and interests second. This President seems to only care about the international aspect.

    DRJ (fdd243)

  179. “Leviticus – Fine. I’m glad to learn the Persian Gulf War was not a war.”

    – daleyrocks

    I never said “a sustained attempt to kill one’s enemies” was both necessary and sufficient to make a war, daleyrocks. I said only that it seemed necessary. I’m open to further qualifications, if you’re interested in having the discussion.

    Leviticus (cf8ec3)

  180. DRJ –

    I can see your concern, and share it in principle: in writing #177, I almost wrote that in situations where the US was joined with the UN, the UN’s guidelines should hold and not those of the United States – but then immediately realized what a surrender of sovereign autonomy that would be, in addition to a means for US presidents to circumvent the requirements and responsibilities of our own Constitution by tacking themselves onto some nebulous UN something-or-other whenever it took their fancy. So I understand. I just happen to think this particular intervention is just, if somewhat shameful in its reluctance.

    Leviticus (cf8ec3)

  181. “The US isn’t trying to kill anyone; we’re trying to prevent someone from killing others…”

    Yeah, right, and when we dropped an atom bomb on Hiroshima, we weren’t trying to kill anyone, we were just trying to get the mean old Japanese to stop killing others, and incidently, we, out of the goodness of our peace-loving hearts, thoughtfully provided the residents with an impressive fireworks display (that accidently fried about a hundred thousand or so Japanese), therefore it wasn’t REALLY war.

    What a load of fatuous nnonsense.

    Dave Surls (529eea)

  182. “Yeah, right, and when we dropped an atom bomb on Hiroshima, we weren’t trying to kill anyone, we were just trying to get the mean old Japanese to stop killing others, and incidently, we, out of the goodness of our peace-loving hearts, thoughtfully provided the residents with an impressive fireworks display (that accidently fried about a hundred thousand or so Japanese), therefore it wasn’t REALLY war.”

    – Dave Surls

    I think the issue here is slightly different: as in, we’re enforcing a no-fly zone instead of dropping an atomic bomb on a major population center. That argument is dumbfounding in its irrelevance.

    Leviticus (cf8ec3)

  183. “I never said “a sustained attempt to kill one’s enemies” was both necessary and sufficient to make a war, daleyrocks.”

    Leviticus – I’m just trying to figure out your parameters, sort of like when aphrael said he needed to see a country’s population rising up against its government before the U.S. should intervene. His rules got kind of fuzzy as to whether certain percentages were required and if so, what they were. It seems like you’re moving along the same type of path. Cute, but not necessarily productive.

    daleyrocks (9b57b3)

  184. Leviticus – Another question, until you meet the enemy, since plans often go astray, how do you know whether some conflict will in fact turn out to be a war, e.g., in excess of 91 days.

    daleyrocks (9b57b3)

  185. Dave

    > Aaron, trust me on this one

    there is no trust in law. its like science. either prove it or don’t bother.

    And that goes double when you are making an argument that would allow the president and the senate to destroy the constitution.

    there is no reason to think that an unconstitutional treaty is nonetheless “authorized” by that same constitution.

    Aaron Worthing (73a7ea)

  186. How do you define war, daleyrocks?

    Leviticus (40f01d)

  187. UN guidelines cannot possibly change the fact that these strikes are acts of war by any reasonable understanding. They do not have the power of a constitutional amendment, and so they don’t change the fact that the legislature has to authorize any act of war.

    Dustin (c16eca)

  188. “I think the issue here is slightly different”

    No. You’re were spewing nonsense, and so was I.

    Same thing.

    This is war, a conflict between two armed groups (with the usual side effect of people getting killed), and no amount of absurd semantic gameplaying is going to change that.

    Dave Surls (529eea)

  189. I don’t think they are, Dustin – obvious acts of war, that is. At this point, the government of Libya has lost legitimacy, and is in the process of attacking its own people. We are acting in defense of a sovereign people where a sovereign state no longer exists – and acting against a band of pirates, at that.

    Leviticus (40f01d)

  190. There is a HUGE difference between an Authorization for the use of Military Force and a Declaration of War.

    Sure. But if congress has specifically authorized the military action that the President is taking, the Constitutional Article I issues are satisfied. And if the AUMF doesn’t authorize the war, then the issues remain.

    Dustin (c16eca)

  191. The war of Ghaddafi against his people is grounds for the dissolution of govt. and a reversion to the State of Nature, where no sovereign state exists. So, we’re not violating the airspace of a sovereign state (an act of war, presumably) because the state no longer exists.

    Eat your heart out, John Yoo.

    Leviticus (40f01d)

  192. I don’t think they are, Dustin – obvious acts of war, that is

    This is simply preposterous, with all due respect. You’re letting the UN redefine war by saying it’s not war if it’s justifiable by one side’s horrible action.

    By your definition, WWII never happened.

    Dustin (c16eca)

  193. “there is no reason to think that an unconstitutional treaty…”

    The only treaty that is unconstitutional would be one that wasn’t made according to the proceedure laid out in the Constitution.

    By definition, ANY treaty passed under the authority of the United States IS the Supreme Law of the Land, along with the Constitution and laws that are pursuant to the Constitution.

    That’s what the problem with that particular part of Article VI is. It doesn’t say that a treaty has to be pursuant to the Constitution.

    The way that section is written you could have a situation where a treaty says one thing, and the Constitution says another thing, then you have to decide, outside of the law, which way to go if they ever conflict.

    This problem could easily be resolved by simply rewording that section of the Constitution through the amendment process and stating that treties, like laws, must be made pursuant to the Constitution.

    Dave Surls (529eea)

  194. “The war of Ghaddafi against his people is grounds for the dissolution of govt.”

    Dude, what are you trying to do? Rival Eric for the most absurd statements made in a single thread?

    Just because you’re making war on your own guys, it doesn’t follow that that is grounds for dissolution of the government.

    We made war on a group of rebels here once, and I don’t think that that was exactly grounds for dissolving the Union, and the government headed up by Abraham Lincoln.

    Dave Surls (529eea)

  195. There is a HUGE difference between an Authorization for the use of Military Force and a Declaration of War.

    Not when it comes to the President. If Congress authorizes the President to use military force, that’s the same thing as a declaration of war.

    While the Constitution grants Congress the power to declare war, it does not stipulate what form such a declaration must take. Authorizing the President to use the military against a country or countries is what a declaration of war is.

    Some chump (e84e27)

  196. Visiting El Salvador on Tuesday, he told CNN en Espanol that he’s accustomed to being both a commander of armed forces and someone who aspires to peace.

    oh sweet jesus he’s a barking loon I have to find the quote

    brb

    happyfeet (ab5779)

  197. yup he said it

    “I’m accustomed to this contradiction of being both a commander-in-chief but also somebody who aspires to peace,” Obama said, adding the Libya mission was to protect the Libyan people from Gadhafi’s military.

    gayest. president. ever.

    happyfeet (ab5779)

  198. He’s a complex man, hf.

    DRJ (fdd243)

  199. bless him

    happyfeet (ab5779)

  200. It isn’t a war unless the U.N. declares it to be so.

    Icy Texan (59f4d2)

  201. some of you military types will appreciate this handy guide to the hardware at work in the war initial peace overtures of the international militant police action oversight committee in libya

    happyfeet (ab5779)

  202. “If Congress authorizes the President to use military force, that’s the same thing as a declaration of war.”

    As long as we nofify the guys we’re about to fight that we’re going to fight them as part of the process.

    That’s kind of the whole point of declaring war.

    Dave Surls (529eea)

  203. Oh, wait . . . Greta Van Susteren just said that it’s a war. I’m sold.

    Icy Texan (59f4d2)

  204. To take Dave’s counterexample to the next level, what if Libya flew warplanes into Waco to bomb the FBI as it tear gassed the Branch Davidians?

    Right or wrong, justified or not, is that not warfare? We may wage war as a ‘police action’, but it’s still an act of war to bomb another country.

    Dustin (c16eca)

  205. “I’m accustomed to this contradiction of being both a commander-in-chief but also somebody who aspires to peace,” Obama said, adding the Libya mission was to protect the Libyan people from Gadhafi’s military.

    He seems to consistently give himself an out, managing to stay on the fence while avoiding a commitment to much of anything. Perpetually sticking his finger in the air to see which way the wind blows – a method requiring very little steel and even less resolve.

    Dana (9f3823)

  206. “I’m accustomed to this contradiction of being both a commander-in-chief but also somebody who aspires to peace,” Obama said, adding the Libya mission was to protect the Libyan people from Gadhafi’s military.

    Good Allah, we are screwed.

    JD (318f81)

  207. James Poulos analyzes our president,

    “I don’t much know what kind of guy President Obama is, and I don’t much care. I do care quite a bit about what kind of president he is, however. What matters is not whether the president is, for instance, a passive-aggressive guy, but whether he is a passive-aggressive president.

    A pattern has emerged. With the Wisconsin union drama, with the long, tormented passage and reversal of Obamacare, even with the Skip Gates scandal, the president has oscillated, one way or the other and sometimes both, between a mild-mannered non-interventionism and a terse, testy, yet attenuated variety of interventionism. So it is again with Libya. Neither the passivity nor the aggressiveness is without its bemused critics, right and left. And neither has proven very effective. Put together, they seem to deliver the worst of both worlds. His errors unforced, his support unreliable, his strategy inscrutable, Obama as president has time and again left allies and opponents in an uncanny perpetual lurch.”

    (emphasis added)

    Dana (9f3823)

  208. I assume it could only be in the last 2 years that Obama has become “accustomed” to being a peaceful warmaker.

    DRJ (fdd243)

  209. Is he doing the right thing though?

    EricPWJohnson (8f7017)

  210. Is he doing the right thing though?

    LOL

    Well, I’m actually starting to wonder. Is fighting Qaddafi the right thing? Yes. But if we leave him in power, or leave behind a government allied with Iran, that’s not so good. Also, apparently the no fly zone is not having as much value in protecting civilians as we thought it might. We have to take out his ground forces too.

    I’m sure our air force can do that, but then we’re leaving behind a power vacuum we aren’t trying to fill. It appears to be ticking off Russia, though, so it must be the right thing (seriously).

    Dustin (c16eca)

  211. Idealists probably view this as the right thing to do. Pragmatists would probably say we have to wait and see, because right now we can’t tell how this will turn out.

    DRJ (fdd243)

  212. On further thought, anti-war idealists probably view this as the wrong thing to do.

    So take your pick.

    DRJ (fdd243)

  213. It would help assessing the value or wisdom of this action if one at least knew what the goal is. It seems to vary.

    Dana (9f3823)

  214. nothing what happens in libya changes the price of my peabnut bubber

    it’s rather far removed from me life. Certainly some of this is cause of I am provincial and not really a pikachu of the world as they say. But it’s also cause of Libya is far away and wretchedly poor and not a little barbaric and if the sun rose on Libya tomorrow to find a land blessed with western virtue and and a democratic resolve I’d be as chuffed as the next guy (yay libya!) but it’s a question of what’s likely isn’t it?

    happyfeet (ab5779)

  215. and

    happyfeet (ab5779)

  216. Dana, in comment 215:

    It would help assessing the value or wisdom of this action if one at least knew whether there was a goal.

    FTFY,

    kishnevi (437df2)

  217. Spot on, kishnevi.

    Four days of allied strikes have battered Libyan leader Moammar Gaddafi’s air force and largely destroyed his long-range air defense systems, a top U.S. commander said Tuesday. But there was little evidence that the attacks had stopped regime forces from killing civilians or shifted the balance of power in favor of the rebels.

    So, if air strikes are less than effective and not doing the trick, then what?

    Dana (9f3823)

  218. “So, if air strikes are less than effective and not doing the trick, then what?”

    See my post #165.

    And, remember…I’m always right.

    😉

    Dave Surls (529eea)

  219. Mr. Surls the United Nations specifically told us we couldn’t use people on the ground only air ones.

    We could get in big trouble.

    happyfeet (ab5779)

  220. happyfeet,
    Do you ever read twitter anymore? I sent you a direct message the other day; for reals!

    Lemme know if you saw it.

    My Regards

    Bob Reed (5f2db5)

  221. Comment by Charles B — 3/22/2011 @ 3:44 pm

    Charles, what are “letters of Marquee”?
    Are they what theater owners use to spell out the name of the movie that they’re playing?

    “…The US isn’t trying to kill anyone; we’re trying to prevent someone from killing others, and trying to minimize our own killing in the process…”

    I would remind you that to make an omelet, you have to break a few eggs.

    “…One effective way to bring peace would be to shoot everyone. No people, no war…”

    Kill everyone – let God sort it out!

    AD-RtR/OS! (89d12e)

  222. How do you define “war”?

    Didn’t someone of prominance once say that war is the continuation of politics by other means?

    AD-RtR/OS! (89d12e)

  223. “It would help assessing the value or wisdom of this action if one at least knew whether there was a goal.”

    I thought the goal was for Obama not to be publicly humiliated by the actions and rhetoric of Sarkozy and Hillary Clinton.

    daleyrocks (9b57b3)

  224. “So, if air strikes are less than effective and not doing the trick, then what?”

    Dana – More U.N. resolutions, duh!

    daleyrocks (9b57b3)

  225. The Peaceful Warmaker!

    Isn’t that the epitome of voting “Present”?

    AD-RtR/OS! (89d12e)

  226. Happyfeet let’s just send Khaddafi and his goons a picture of Helen Thomas in a bikini.

    DohBiden (984d23)

  227. More: Since the bombing began Saturday, U.S. and allied forces have launched 162 Tomahawk missiles and conducted more than 100 attacks with precision-guided satellite bombs, said U.S. Navy Adm. Samuel J. Locklear III, commander of the allied task force charged with enforcing the U.N. resolution that authorized action in Libya.

    But he conceded that the airstrikes have been unable to halt attacks by Libyan government forces against civilians.

    It will be interesting to see if the president has the resolve to stick with his original assurances,

    President Obama pledged in Brazil on Saturday that “we will not deploy any U.S. troops on the ground” and emphasized Monday that the American role would be growing smaller “in a matter of days and not in matter of weeks” as other nations take part in enforcing a no-fly zone over Libya.

    Dana (9f3823)

  228. That would be stopped by the ACLU in the 9th-Circus as an 8th-A violation.

    AD-RtR/OS! (89d12e)

  229. Dana, I wonder who advised Obama that a no fly zone could contain this situation. They may be under the bus soon.

    Dustin (c16eca)

  230. “…we will not deploy any U.S. troops on the ground…”

    You cannot hold territory without boots standing on it.

    AD-RtR/OS! (89d12e)

  231. Dustin,

    From what I’ve read, it seems it was Libya’s ambassador to the U.S., Ali Suleiman Aujali who made the request.

    Here is a transcript of an interview with him,

    JEFFREY BROWN: We heard President Obama today call again for Gadhafi to leave. He spoke again about preparing a full range of options. He didn’t go further yet — he didn’t rule out, but he didn’t go further yet to a no-fly zone.

    What was your reaction to his…

    ALI SULEIMAN AUJALI: Well, I must say, thank you very much to President Obama, because I made appeal through the CNN two days that we trust him. We want him to be firm with this regime. We want him to help our people. And we want him to work with the Europeans and other countries to establish the no-fly zone.

    JEFFREY BROWN: But you have heard concerns raised about the effectiveness of establishing a no-fly zone, about the possibility, of course, drawing in military — the military into this situation?

    ALI SULEIMAN AUJALI: Well, a fly zone, it is a very important issue.

    And — but I have to be clear about this. We do not want any physical presence in our lands. But our air are free for the international community to act. And, if they act, they have to act strong, no chance for the regime to come back again and slaughter the Libyans.

    Dana (9f3823)

  232. This is and has been from the start a very interesting and civil (hate to have to say that last part) discussion, and a great testament to how good and useful blogs can be as the virtual street corner or public meeting or whatever, and now I’m going to outline my thoughts in more detail in this post.

    deeplemebus, a treaty cannot override the US Constitution.

    The question at issue with what I was saying is that the Constitution empowers the Senate to ratify treaties; does that give them constitutional power on par with Congress’s power to declare war and fund war?

    I would say that, considering the weighty issued involved, that Congress’s power as a whole overrides, as you say, treaties ratified by the Senate, when it comes to war. So you are correct and I wasn’t, on that.

    Now as to why I think this war is constitutional, although the process of it was certainly close to the line.

    First, the US has an extensive history of using military force without congressional approval, although Congressional approval has, as far as I know, quickly been gained. I do believe that the Constitution does not allow the president to just go off to war, but it is reasonable to recognize that there can be urgent circumstances necessitating acting now and asking permission swiftly after.

    Second, major congressional figures have certainly not been aware of the situation, and some of them have been cheerleaders for intervention. Congress may not have passed specific authorization, which they should soon, but I think most of the complaining about lack of consultation is coming from the Progressive Caucus and is ideological in nature, not that that’s wrong, just that the ideology is incorrect. Congressmembers knew action was coming, and if they didn’t, then they were being incompetently obtuse.

    Third, Congress and the Executive have struggled over the years as to conduct of military operations (Joint Committee on the Conduct of the War, anyone?), and the Executive has slowly won out. I think this is correct.

    Congress’s role in war is pass funding for it, and to make the ultimate decision as to either initiating or deciding to remain involved in a conflict. The President cannot be hamstrung by Congress, but he must also not be able to run roughshod over them.

    This:

    And no, the U.N. resolution doesn’t provide justification, either. The Constitution assigns the power to declare war to Congress and no treaty can abrogate that.

    I believe is not so black and white as presented, as I said above, as the Executive’s power to make war has and still does struggle with Congress’s power to declare and fund war.

    …only pursuant to:

    (1) a declaration of war,

    (2) specific statutory authorization, or

    (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

    So now you’re going to use a law passed by a Congress controlled by men who were a step and a half away from being Communists and passed over a veto as a way to support your constitutional argument? The War Powers Act is unconstitutional. It interferes with the Executive’s constitutional authority as commander-in-chief.

    For instance, it is not altogether clear that the President could actually wage war on his own accord if we were invaded.

    Even without the WPA, the President’s position as CoC and the oath he takes:

    “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

    Coupled with this:

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    Means the President has the responsibility to order defense by force against an invasion even without Congress saying okay. Unless you’re saying the Constitution contradicts itself.

    Oh, and also, what with Libya being the country sending the third-most men to fight as insurgents to Iraq, please, Mr. Worthing, do not go so far up on the limb to say that Qaddafi had nothing to do with that. He’s responsible for American deaths from the 1980s through today, across Europe, and in Iraq. Doesn’t matter how much. It isn’t ancient history.

    I find it unconscionable that people talk about how these countries haven’t attacked us when they really have, over and over and over again, through underhanded means that are acts of war in and of themselves. Syria too. They get to prick us and prick us and prick us and Americans are killed by them but we just take it because going to war is “serious” and there are all these constitutional issues and blah blah blah. You know what? I don’t want to go around bombing 90% of the countries in the Middle East, but if we’re talking about who is waging war on us without any qualms, it’s just about everyone, while we now wring our palms and squabble about responding.

    Well, that is a sign of strong and vibrant civil society, and that is very good on its own, but we have plenty of cause to go smack these guys around, and if Congress is a little late approving it, we all know that they will get around to passing authorization SO KEEP YOUR SHORTS ON =)

    deeplemeblues (a78b16)

  233. oh. hi! One sec.

    happyfeet (ab5779)

  234. Comment by AD-RtR/OS! — 3/22/2011 @ 7:38 pm

    The exact phrase was “Kill them all, God will know His own.”

    kishnevi (437df2)

  235. Barackonois Illobama is a corrupt dirty bastage.

    DohBiden (984d23)

  236. . We do not want any physical presence in our lands. But our air are free for the international community to act. And, if they act, they have to act strong, no chance for the regime to come back again and slaughter the Libyans.

    Comment by Dana

    Thank you Dana for that transcript.

    I’m amazed at the audacity of hope here. You demand no ground forces, but also demand a strong enough action that there is no chance of Qaddafi recovering or slaughtering.

    Kosovo was a similar reliance on air power, and it was not nearly as surgical in avoiding collateral damage as OIF has been. I think some people have an unrealistic faith in the ability of our awesome air force. I don’t think they can knock our every pickup loaded with goons (and even attempting to go that far with F-15s would mean massive destruction), and if we do not eliminate Qaddafi’s regime, he’s going to seek far more retribution soon. He’s got chemical weapons.

    Let’s hope Obama can figure this out.

    Dustin (c16eca)

  237. Obama doesn’t know and is looking to the military,

    As a senior US officer said Kadhafi forces were still attacking civilians, doubts persisted over the best way to continue the campaign to stop Kadhafi, and where it was leading.

    However, US President Barack Obama said there has been a “significant reduction” in US flights over Libya, and he expected “clarity” on the future command structure of allied military operations “over the next several days.”

    Dana (9f3823)

  238. Comment by AD-RtR/OS! — 3/22/2011 @ 7:41 pm

    Clausewitz

    Although there is also a version of the quote which substitutes diplomacy for politics.

    There are a couple of other quotes on that page that might be applied to the current situation:

    “The first, the supreme, the most far-reaching act of judgment that the statesman and commander have to make is to establish . . . the kind of war on which they are embarking.”

    “no one starts a war-or rather, no one in his senses ought to do so-without first being clear in his mind what he intends to achieve by that war and how he intends to conduct it.”

    kishnevi (437df2)

  239. AD-RtR/OS!,

    Letters of Marque are letters from a government authorizing piracy by civilians. The idea being that since a government may not have a large enough Navy to defend either the coast line or even conduct offensive missions against enemy merchant fleets. These can be useful two-fold in that the prizes (ie the captures ships and thier cargo) can be sold off in an Admirality court and depending on the verbage of the letter a precentage of the profits from the sale of both the ship and the cargo to the privateer.
    The US Contential Congress issued some to some of the Yankee New England merchant families made massive dollars during the Revolutionary War with their letters. These letters are also supposed to be legal defense in a court of law when the enemey captures the privateer, basically a get out of jail free card.
    Some famous privateers include supposedly the Captain William Kidd, Frenchman Jean Bart, Sir Frances Drake of England, Welshman Sir Henry Morgan, it is believed that the CSS raider Alabama was also running on a letter of Marque issued on the CSA Congress, there are also a few others from the 1500’s on up to 1856.

    In 1856 most of Europe agreed to no longer issue Letters of Marque as per the Declaration of Paris. The US is not a party to this treaty and that has caused some minor debate in the Naval and Merchant Marine community that if Congress wanted to deal with piracy issue off Somalia it should start to issue these letters again.

    Charles B (4f8b94)

  240. I’m amazed at the audacity of hope here.

    Il nous faut de l’audace, encore de l’audace, et toujours de l’audace!

    the French revolutionary Danton; Patton often used this quote, but but mistakenly attributed it to Frederick the Great of Prussia (a mistake made by many others, I should add).

    kishnevi (437df2)

  241. I don’t trust muslims.

    DohBiden (984d23)

  242. I’m always amazed at the number of Supreme Court justices that inhabit the intertubes.

    Hi Sonya!

    Ag80 (efea1d)

  243. deeplemeblues,

    The problem is proving in international law that these nations have via overt means attacked the US. Just because a group like Hezbollah drives a truck fully of explosives against the billeting compound of the US Marines in Beirut, does not directly mean Iran was responsible. Nor does it mean when a group like the Red Army Faction guns down a US military officer outside of a German/US joint base mean that the KGB/USSR is guilty. The same was true of Libya, Syria, and a slew of other nations. Just cause our “gut” feels hinky does not mean when the circumstantial evidence leads to a slam dunk in a court of law that could lead to a declaration of war or even a legal justification of war. See the Nuremberg Trials and one of the war crimes was an illegal war with regards to Germany invading Poland. Also see the numerous complaints against nations like USSR going into Finland in the 1940’s, Japan against China in the 1930’s, Italy in Ethopia in the 1930’s, Argentine Junta invading the Falklands, Iran-Iraq war, etc. Some misunderstanding is what has lead to those on the left to compain that both Operation Enduring Freedom and Iraqi Freedom are illegal in this sense because we don’t have overt explinations as to justification for the invasions or even the aerial bombing.

    When the US struck Libya in 1985 and 1986 it had the ability via national techical means that Libya had provided both covert and overt support to terror groups that not only did the West Berlin Discotheque bombing, but also training facilities of the El Al Rome International airport attack, the training and transport of the pirates that siezed the Achille Laurao, and some other terror attacks at the time. Since Gaddafi also tried to claim all the waters from Tripoli to Malta and then over to Bengahazi as his on territorial waters, we exercised the right with regards to Freedom of Navigation, as laid out in the UNCLOS and customary laws of the seas. We only recognized that Libya was authorized 12nm limit as per UN treaties and again customary laws of the sea. So when the US Navy was doing the FoN and Libya came out to do aggressive manuvering along with firing at aircraft in International Air space, using targeting radars from military vessels against properly flagged military ships who identify themselves over Guard Frequencies; all of which gave us the right to self defense with firing against Libya air defense sites and to sink the Libyan patrol boats.

    Charles B (4f8b94)

  244. Clausewitz said that Politics was the application of force, to get people to do what you want.

    Persuasion and or/diplomacy is at one end of the spectrum and warfare being politics or the application of force at it’s extreme.

    I think what you are trying to get at is warfare is politics at it’s extreme.

    madawaskan (fd190b)

  245. Politics is gossip at the water cooler, politics is trying to justify getting a pay raise.

    That’s the other end of it. A lot of people want to feel as if they are above “politics” it is rarely so.

    First before defining war and/or warfare it helps to have people define-politics.

    madawaskan (fd190b)

  246. This is with no evident or implied criticism, but it is interesting to see an Althouse poster in the environ. Welcome, for me, at least.

    Ag80 (efea1d)

  247. The best Clausewitz dictum might be essentially wars never go according to plan.

    In the cauldron of warfare man’s ingenuity is pushed to it’s extremes making for some of the most rapid technological advances of our times. It puts fire to the –necessity is the mother of all invention.

    madawaskan (fd190b)

  248. In war more than anywhere else things do not turn out as we expect. Nearby they do not appear as they did from a distance.

    madawaskan (fd190b)

  249. Thanks Ag80.

    madawaskan (fd190b)

  250. so why can Iran get away with nuclear power but not us?

    Sorry for the off topic.

    DohBiden (984d23)

  251. CharlesB, there are several things you said I’ll reply to a little later when I get the chance, good post though of course.

    deeplemeblues (a78b16)

  252. Nicely said Charles.

    DohBiden (984d23)

  253. Comment by kishnevi — 3/22/2011 @ 8:00 pm

    I was using Green Beret shorthand.

    AD-RtR/OS! (89d12e)

  254. “Mr. Surls the United Nations specifically told us we couldn’t use people on the ground only air ones.”

    Mr. Feets, I don’t give a good goddamn what the United Nations says.

    This is the same organization of maggots that voted to condemn the United States when we launched air strikes against K-daffy in the 1980s.

    Now, they’re trying to give us orders on the proper way to fight Islamotrash???

    Ha ha ha. Pardon me, if I ignore them.

    Piss on the U.N. If it was up me, I’d toss a Tomahawk or two at the U.N. building in New York, if I had any left to spare after blowing K-daffy and his minions straight to hell, where they belong.

    Not only would that rid us of a pack of backstabbing, verminous scum currently residing on US soil, but it would also provide K-daffy with some UN diplomats, who could be put to work fetching him cold drinks, while he roasts in hellfire for eternity.

    That would be a win-win for all concerned.

    Dave Surls (529eea)

  255. Comment by Charles B — 3/22/2011 @ 8:18 pm

    Yes, Charles, I am familiar with Letters of Marque.
    Also, back when I was in college, which was after being taught about Letters of Marque while staying awake in HS American History, I become familiar with marquee letters while managing a neighborhood theatre.

    AD-RtR/OS! (89d12e)

  256. “… via national techical means …”

    You are talking about the No Such Agency, aren’t you?

    AD-RtR/OS! (89d12e)

  257. deeplemeblues,

    Thank you for the nice words about my comments. As I re-read my previous posting I see as per my norm when I am at the end of my candle, I forgot a few words and probably made it hard to read. However, I hope you got the gist of what I was trying to say.

    Charles B (4f8b94)

  258. “The problem is proving in international law that these nations have via overt means attacked the US.”

    That’s no problem, ’cause we don’t have to prove dick.

    There’s no such thing as a War Court where you have to prove that so and so hit you, before you can smack them back.

    If there was, we’d likely still be in it trying to prove that the Japanese bombed Pearl harbor, and they’d be saying: Who? Us? You can’t prove we did. Just because guys are flying around in Mitsubishis and Aichis, with red suns painted on the wings, sinking your faulty battleships and stuff, doesn’t prove it was us that did it. Besides, we have a perfect alibi: We were invading Hong Kong that day, so it must have been somebody else.

    Dave Surls (529eea)

  259. AD-RtR/OS!,

    Those guys and the Christians In Action, G-men, Defense Intelligence Agency, and the slew of other intelligence and defense alphabet soup agencies in the Federal Government.

    As to the Letter of Marque vs Marquee. I say not enough sleep recently and not having my dictonary readily in front of me to fix my spelling.

    Charles B (4f8b94)

  260. Dave Surls,

    Actually there is a war court. The International Court of Justice, even though we aren’t members of the treaty anymore. Along with the International Criminal Court, even though we aren’t signatories of that treaty.

    Plus, international relations and foregin policy issues along with an air of being diplomatic/gentlemen/chivarlious state that we make a case before the world. I would also suggest that you take a look at the UN Charter specifically chapter 7, http://www.un.org/en/documents/charter/chapter7.shtml, that states to the effect that an effective case for war should be presented in front of the body as a way to help resolve the dispute in a peaceful manner. As Aaron Worthington and Dustin have pointed out the UN does not supercede, the US Constitution; however, we are members of the UN and typically try to abided by (as any nation does in the diplomatic world does) the rules so that we can maintain the moral high ground.

    Failure to do so can potentially lead to this nation becoming a leper in the eyes of other industrialized nations and the treatment of economic embargos, quaratinnes or even potentially offensive action against us by a collation since we might be considered a “rouge nation”.

    Again historical precedent seems to set it up that if we don’t want to be viewed in the same colors as Nazi Germany, Stalinist USSR, the People’s Republic of China, Facist Italy, Imperial Japan, etc; then we should present the case for going to war in front of world.

    Charles B (4f8b94)

  261. The problem is proving in international law that these nations have via overt means attacked the US. Just because a group like Hezbollah drives a truck fully of explosives against the billeting compound of the US Marines in Beirut, does not directly mean Iran was responsible. Nor does it mean when a group like the Red Army Faction guns down a US military officer outside of a German/US joint base mean that the KGB/USSR is guilty. The same was true of Libya, Syria, and a slew of other nations. Just cause our “gut” feels hinky does not mean when the circumstantial evidence leads to a slam dunk in a court of law that could lead to a declaration of war or even a legal justification of war. See the Nuremberg Trials and one of the war crimes was an illegal war with regards to Germany invading Poland. Also see the numerous complaints against nations like USSR going into Finland in the 1940′s, Japan against China in the 1930′s, Italy in Ethopia in the 1930′s, Argentine Junta invading the Falklands, Iran-Iraq war, etc. Some misunderstanding is what has lead to those on the left to compain that both Operation Enduring Freedom and Iraqi Freedom are illegal in this sense because we don’t have overt explinations as to justification for the invasions or even the aerial bombing.

    I disagree, not only because the US is regularly condemned as committing acts of war for allegedly engaging in actions like this, and because most of those groups are essentially controlled by governments, or supported to such a degree that the distinction is almost nothing, but also because they ARE committing acts of war and we have the privilege of responding at our choosing.

    When the US struck Libya in 1985 and 1986 it had the ability via national techical means that Libya had provided both covert and overt support to terror groups that not only did the West Berlin Discotheque bombing, but also training facilities of the El Al Rome International airport attack, the training and transport of the pirates that siezed the Achille Laurao, and some other terror attacks at the time. Since Gaddafi also tried to claim all the waters from Tripoli to Malta and then over to Bengahazi as his on territorial waters, we exercised the right with regards to Freedom of Navigation, as laid out in the UNCLOS and customary laws of the seas. We only recognized that Libya was authorized 12nm limit as per UN treaties and again customary laws of the sea. So when the US Navy was doing the FoN and Libya came out to do aggressive manuvering along with firing at aircraft in International Air space, using targeting radars from military vessels against properly flagged military ships who identify themselves over Guard Frequencies; all of which gave us the right to self defense with firing against Libya air defense sites and to sink the Libyan patrol boats.

    I think the way the law has been written and the way it has been perceived gives more leeway than what you believe. It’s too late for me to go into detail about it now but I’m looking forward to doing so tomorrow.

    deeplemeblues (a78b16)

  262. Dave Surls,

    I would also say that your statement of

    If there was, we’d likely still be in it trying to prove that the Japanese bombed Pearl harbor, and they’d be saying: Who? Us? You can’t prove we did. Just because guys are flying around in Mitsubishis and Aichis, with red suns painted on the wings, sinking your faulty battleships and stuff, doesn’t prove it was us that did it. Besides, we have a perfect alibi: We were invading Hong Kong that day, so it must have been somebody else

    Is a straw man. Again as most of the world is readily able to accept it that most nation states are entitled to the right of self-defense. Your statement that we would need to ask premission after being attacked a Pearl Harbor is completely misunderstanding both the historical record and the international law of war precedents. First off the Imperial Japanese Government had delievered to the United States that if by a certain time period the embargos had not been lifted from thier nation, then a state of war would exsist after that time. The initial intention was that that was legally justified for the Imperial Japanese attack. However, due to errors in decoding and translation into English, this declaretion of war was not delievered until well after the attack had been delievered on both US Forces in Hawaii, Guam, Philippines Islands had come and gone. The statement from the Imperial Japanese government was totally with in the Hague Conventions of the early part of the 20th Centuary. War could be declared between states via a diplomatic note before the actual firing of the guns and this was considered totally legal.

    The right of a nation to defend itself while in international territory has been a constantly affirmed as being with in the precedents. The same is the defense of extranational territory (embassys and consultates), nations are authorized to defend these to an extent. It is all about the use of force ladder. A nation just can’t go in with nuclear weapons cause thier ambassador gets beaned in the face by a rock. The same is true if one of our fishing boats is shot at by a Canadian fishing boat, we just can’t bomb Calagary back to the stone age and claim that was in retalitaion for a broken window on our fishing boat. There needs to be a reasonable application of force. Very similar to how a police officer has to abided by the force ladder when approaching a situtation.

    Charles B (4f8b94)

  263. “Actually there is a war court”

    Not one that we have to appear in before we decide to pound the bejesus out of our enemies.

    And, we told the ICJ to go pound sand decades ago when they tried to tell us how we ought to play nice and show some respect to the commies in Nicaragua.

    We told them to go piss off.

    And, they did.

    They have no authority over us.

    Dave Surls (529eea)

  264. My last comment for the night. Dave, you’re being overly sarcastic in order to express your attitude about international law. We aren’t really talking about the UN here, we’re talking about the Hague Conventions and such. They are very good and very important international laws. I think that the UN Charter’s articles on war are a weak substitution for the laws that were already existing and still are.

    Good night everyone.

    deeplemeblues (a78b16)

  265. “Dave, you’re being overly sarcastic…”

    Never.

    When I’m sarcastic, it’s always delivered in the precisely appropriate dose.

    Dave Surls (529eea)

  266. And, what’s up with all this letters of marque stuff I keep seeing?

    Is someone planning on going into the privateering business?

    Dave Surls (529eea)

  267. Never.

    When I’m sarcastic, it’s always delivered in the precisely appropriate dose.

    I disagree sir =)

    deeplemeblues (a78b16)

  268. Dave

    “The only treaty that is unconstitutional would be one that…”

    You don’t win an argument by just restating your point. You have claimed that “authority” only means “following the technical procedural requirements for ratifying a treaty.” i have said since 1789 that all lawful authority in the federal government comes solely from the constitution. I believe my view is more consonant with the intention and public understanding of the document as ratified. you can disagree, but if you are only going to repeat yourself, there isn’t much more point in arguing the issue.

    Aaron Worthing (e7d72e)

  269. Deja vu

    The Emperor (42de38)

  270. “i have said since 1789 that all lawful authority in the federal government comes solely from the constitution.”

    I didn’t realize you were that old, Aaron.

    Dave Surls (0a54c1)

  271. deeplemeblues,

    With respects to statements about the FoN laws. I am pretty sure your right there is more depth to those laws. Most of my references about that portion of the law are currently wrapped up in shipping boxes in preperation to move for my job. I was just trying to recall off the top of my head what I had studied while taking some Distance Learning Courses from USNPS and Naval War College. My memory is pretty faulty at times, that is a fact I am sure of. This is because my wife always gives me a hard time around our anniversary and her birthday about my faulty memory.

    As to nations using trans-national forces to try and influence world events. Trying to recall what I learned, I would suggest that you take a look at it like this. We all know that Micheal Corleone is the head of the of the Corleone Crime family. We are also pretty sure that he ordered the murder of his own brother Fredo. However, the most that we can prove is that the actual gunman and Corleone just happen to frequent the same diner for breakfast every other Monday. The never met beyond maybe in passing at the front door or at the cash register. If we brought that sort of evidence into the court, we would be laughed right back out. We would need to have phone converstations, a written order, photographic evidence of the weapon/money being changed hands, even a confession from someone saying that “Yes I helped to do…” or something tagiable to prove that Micheal gave the gunman the order. I am sure that is overly simply, but it is the best way I can think to explain it right now.

    That is some of the same evidence we would need to present a strong enough case for retributive action in the overt sense (ie bombing, landing a punatitive raid, or something similar) against a nation that we know supported a terrorist attack against the USA.

    The really funny part as one of my instructors explained it to us, was there is a sense of “Wink, Wink, Nudge, Nudge, You know what I mean” about one side knowing that the other side did provide support to a transnational force (like the Red Army Faction, the PLO, IRA, Al-Qedea, Hezbollah, Hamas, etc) in most of the diplomatic and military circles that meet each other. Also, again as it was explained by an instructor, typically the one who complains the loudest about being subjected to coups or assisnation plots from an industrialized nation like the US or the UK; is the most guilty of the crimes they are fostering on others.

    I would also suggest to most that there is a couple of new concepts out there in foreign policy world. One has been titled “Lawfare”, where basically some sort of legal justification to act has to be proven. The other is the famous “CNN Effect”, where if the stronger nation looks bad on CNN/Aljezzera/BBC/whatever then the weaker nation has won the war. Score double if the weaker nation manages to kill a number of the stronger nation’s populace. It will have looked like a case of bullying. The two of these seem to be living hand in hand.

    Charles B (4ea998)

  272. “As to nations using trans-national forces to try and influence world events.”

    Charles B. – Transnational forces do have a pretty good record of raping and pillaging the populations they are tasked with protecting, at least in Africa, so there is that track record to review!

    daleyrocks (9b57b3)

  273. Well, this thread kinda blew up (or at least continued apace) last night after I left, so I’m kinda late to the party at this point, but I will conclude with this: there’s a difference between a people attacking its government (e.g. the Civil War) and a government attacking its people (e.g. Libya, and Sudan); by Locke, the latter is grounds for the dissolution of government; by common sense, the Libyan state seems dissolved in a way Germany or Japan never was.

    Obviously, these aren’t solid legal arguments; but I have some belief in the principles, insofar as they underlie our own constitution. And I the “whenever bombs drop its war” argument lacks appropriate… ahem… nuance. (ducks)

    Oh, and on a closing note: there’s a huge difference between an authorization of military force and a declaration of war – for instance, a declaration of war has to be directed at another nation, whereas an AUMF can be directed at “whatever nations, organizations, or persons” the president feels have earned a smart-bomb down the chimney. So yeah – there’s a big f*cking difference. And there’s a big difference between setting up a defensive no fly zone and sending ground troops into a foreign country (though I wouldn’t necessarily call that war or an act of war either).

    Leviticus (b987b0)

  274. We should have set up a no-fly zone in Sudan, by the way. Bashir was bombing Darfur for years, and we didn’t do anything about it; now we hop to it with relative quickness when Ghaddafi starts bombing his people – but Libya happens to be an oil-rich nation. I’m sure the Benghazi guys will be really, tangibly grateful for our help when Ghaddafi is eventually deposed.

    Leviticus (b987b0)

  275. “And there’s a big difference between setting up a defensive no fly zone and sending ground troops into a foreign country (though I wouldn’t necessarily call that war or an act of war either).”

    LOL.

    If Mexico sent troops across our border and set up a no-fly zone patrolled by Mexican jets, we wouldn’t regard that as an act of war?

    Dude, I don’t know what it is you’re smoking, but whatever it is, you need to lay off.

    Dave Surls (0a54c1)

  276. If an illegitimate self-styled “government” of the United States was waging systematic war against the people of the United States, and those same (sovereign) people requested that the Mexican government set up a no-fly zone over the US, and the Mexicans did, then no, I wouldn’t regard that as an act of war.

    You don’t get to omit key words from my argument in order to make yours stronger.

    Leviticus (946869)

  277. Who would that be an act of war against, in the scenario I detailed?

    Leviticus (946869)

  278. It would be an act of war against the United States Government, Leviticus.

    Obviously, I might add.

    Just because in this scenario the USA’s government is acting contrary to democratic ideals doesn’t mean it’s logically impossible to go to war against them.

    In your book, is it logically possible to go to war against Hitler’s Germany? I dont think the word “war” has any moral component in it.

    Dustin (c16eca)

  279. Dave

    > I didn’t realize you were that old, Aaron.

    well, actually i have been reincarnated. the first time i was james madison. then i was reborn as abraham lincoln…

    Aaron Worthing (e7d72e)

  280. leviticus

    the government doesn’t have to be legitimate for this to be an act of war.

    Aaron Worthing (e7d72e)

  281. I thought you were Dolly Madison, Aaron.

    SPQR (26be8b)

  282. I am curious is Leviticus is suggesting a novel use of the term ‘war’, or if he’s suggesting this is what ‘war’ always meant in the US Constitution.

    Did the ratifying states think it isn’t war if the leader is an unruly king oppressing his subjects?

    We are, after all, not talking about the English language. We’re talking about constitutionality.

    Dustin (c16eca)

  283. “well, actually i have been reincarnated. the first time i was james madison. then i was reborn as abraham lincoln…”

    Some guys have all the luck.

    First time I was Benedict Arnold, then Jefferson Davis…and, now look at me!

    Dave Surls (0a54c1)

  284. Leviticus – In all your pondering, who gets to decide that the current government of Libya is illegitimate and should be removed? Some NGO? Wasn’t the same situation present in Iraq prior to our 2003 invasion? If not, why not?

    daleyrocks (9b57b3)

  285. “You don’t get to omit key words…”

    I didn’t omit word one. If I had, I would’ve put three dots (…) in the quote to show that I had.

    All I did was laugh at the idea that the United States wouldn’t regard a foreign power setting up a no-fly zone over the United States as an act of war against the United States, when everyone on planet earth knows that we damn well would.

    Dave Surls (0a54c1)

  286. Dave – Liberals know those Libyans are semi=brown people, savages when you come right down to it, so all that multi-culti stuff goes right out the window when push comes to shove and you absolutely cannot compare a no-fly zone over their primitive country with a no-fly zone over the strongest and most advanced country in the world. No sir, completely different.

    daleyrocks (9b57b3)

  287. If north korea claims a “no fly zone” over international waters, one of the first things we do is fly through. We should never let anyone tell us where we can and cannot go within recognized international spaces.

    Anyone getting close enough to US soil to declare a no fly zone over even the furthest Florida Key should have every single plane in their military blown into chunks. Air bases should be destroyed and all their pilots either killed or driven to hiding in the jungle
    But first, within minutes of the declaration we should begin to rain cruise missiles through the windows of every general, president, etc for 40 days and 40 nights

    Whatever happened to the neutron bomb? It’d be handy for regime change applications

    SteveG (cc5dc9)

  288. Lefties summarized…

    ‘“I don’t know what you mean by ‘glory,’ ” Alice said.’

    ‘Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’”’

    ‘“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.’

    ‘“When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”’

    To lefties, words like “war” or “legitimacy” mean what they say they mean, neither more nor less.

    And, of course, the meanings are fluid, so that words change meaning according to circumstances.

    When Slick Willy bombs Iraq, that’s not war; when George Bush does so, it is war (and a war of aggression, no less); then, when the New Messiah bombs Libya we’re back to it not being war again.

    And so it goes.

    Dave Surls (0a54c1)

  289. “It would be an act of war against the United States Government, Leviticus.

    Obviously, I might add.”

    – Dustin

    I’m arguing that when a government wages war against its own people, it ceases to be a legitimate government, which is a perfectly reasonable distinction to make. So that a response by Mexico to unprovoked US “government” attacks against US citizens (per the hypothetical) would not be an act of war against the US government because that government would have ceased to exist. I’m also arguing (not that it matters) that the Framers might’ve agreed with me, based on their respect for the democratic theory of John Locke.

    “There is therefore, secondly, another way whereby governments are dissolved, and that is, when the legislative, or the prince, either of them, act contrary to their trust. First, The legislative acts against the trust reposed in them, when they endeavour to invade the property of the subject, and to make themselves, or any part of the community, masters, or arbitrary disposers of the lives, liberties, or fortunes of the people.”

    Second Treatise Chapter XIX, Section 211

    I think it’s an interesting question – what makes or does not make something war. There may be a war in Libya, but it’s between a sovereign people and a usurping and oppressive band of pirates which style themselves a legitimate government – but their aspiration does not dictate reality, and Ghaddafi is no more the governor of Libya than I am.

    Leviticus (605cda)

  290. Whatever happened to the neutron bomb? It’d be handy for regime change applications

    Not so handy for protecting civilians from trucks filled with goons. Though I’m not sure F-15s are the ideal weapon for that either.

    When Slick Willy bombs Iraq, that’s not war; when George Bush does so, it is war

    You noticed that too? When Clinton claimed Iraq had WMDs and we needed regime change, he was being an honest leader. When Bush relied on George Tenet for the same claim, he was “lying”.

    Dustin (c16eca)

  291. I’m arguing that when a government wages war against its own people, it ceases to be a legitimate government,

    This is true, but it is possible to go to war against such an evil entity. Illegitimate governments are the norm. They are real, and persist. The laws of war apply to us when fighting against them.

    It is not constitutional to start defining countries in a way where the president can invade them without it being war. There’s no way this rule would have been recognized by the ratifiers of the constitution who had just fought a war against their oppressive king.

    You argue a great justification for war, not a reason it isn’t a war.

    Dustin (c16eca)

  292. Leviticus: “there’s a big difference between setting up a defensive no fly zone and sending ground troops into a foreign country (though I wouldn’t necessarily call that war or an act of war either).”

    Dave Surls: “If Mexico sent troops across our border and set up a no-fly zone patrolled by Mexican jets, we wouldn’t regard that as an act of war?”

    Leviticus: “You don’t get to omit key words from my argument in order to make yours stronger.” [i.e. you admitted the all-important ‘defensive’]

    Dave Surls: “I didn’t omit word one.”

    So… yeah. You did. You admitted a very important word.

    Leviticus (605cda)

  293. Dustin: Jefferson thought it appropriate to set up a defensive network of US naval ships to protect US commercial vessels from the Barbary Pirates without a congressional declaration of war. It was for offensive operations that he admitted he needed congressional authorization.

    Leviticus (605cda)

  294. “This is true, but it is possible to go to war against such an evil entity.”

    – Dustin

    It’s possible to fight such an entity, but it’s debatable whether or not it’s possible to “wage war” against it. Again, a declaration of war must be directed at a sovereign nation.

    Leviticus (605cda)

  295. It seems like Leviticus is arguing for something similar to the Geneva conventions, much of which was originally meant to apply to those who obey the laws of war.

    If you don’t follow the rules of war, you lose the protections of the rules of war. In practice, it doesn’t work that way at all, but that was the theory.

    It’s true that democracies generally do not go to war with eachother, and convey a completely different level of legitimacy to eachother. This is a wonderful development, and it’s good to keep in mind that dictatorships that oppress their own people should not have the same status.

    And it would be far worse to go to war, police action or not, against a functioning democracy. That is oppression.

    But no matter how much more justified it is to go to war against Hitler, for oppressing others, it’s still war.

    Dustin (c16eca)

  296. Daleyrocks: it’s hard to draw a bright line in the sand at a particular percentage point, because the existence of a popular uprising isn’t the only factor you want to consider.

    I mean, as a ridiculous example, clearly the threshold for supporting a popular uprising in Libya is lower than the threshold for supporting a popular uprising in China.

    aphrael (836cba)

  297. It’s possible to fight such an entity, but it’s debatable whether or not it’s possible to “wage war” against it. Again, a declaration of war must be directed at a sovereign nation.

    Sigh. I appreciate that you’re willing to stick to your guns and argue this in good faith, but I think you’re making an unfair switch.

    Oppressive dictatorships are still sovereign nations. North Korea is sovereign. You may not respect them. In fact, no one should, but they are nations still. Most of the sovereign nations in world history have been dictatorships or monarchies, and it is not constitutional to give the president the power to go to war against them, at will, because they are different from democracies. There is no logical coherence to that, and you’re also creating a huge problem over who gets to say a country is a country, when we’re actually talking about warfare more directly. I think the only branch that could handle this would be the judiciary, and I can’t imagine how this would work.

    At the time of the Constitution’s ratification, the world was not exactly overrun with democracies.

    Dustin (c16eca)

  298. because the existence of a popular uprising isn’t the only factor you want to consider.

    Who is the “you”?

    I think you’re talking about a political question rather than a legal one. Has a country gone far enough to justify war? Let the president take his case to the people (the legislature in our system) and find out.

    Dustin (c16eca)

  299. Whether Hitler waged war against the people of Germany is a lot more debatable than whether Ghaddafi is waging war against the people of Libya. For all the violations of rights Hitler inflicted, particularly on Jews, gypsies, and other German citizens, he did so with the endorsement of a large majority of the German population. So it may very well have been war, the war of the sovereign people of the US vs. the sovereign people of Germany, in full embrace of their own Nazism. But it’s not the same in Libya. To call our actions in Libya war a)ignores their defensive nature and b) grants to Ghaddafi an implied legitimacy which he doesn’t deserve. You go to war against sovereigns. The people of Libya are sovereign, and they were attacked by their self-styled “government”. We are defending sovereignty – so how can you call it war?

    On that last note, I’ve still yet to see anyone else advance a good definition of “war”.

    Leviticus (e87aad)

  300. “North Korea is sovereign.”

    – Dustin

    By what defensible definition is the government of North Korea sovereign? I am trying to make a moral argument here, as someone (I think it was you) identified above.

    Leviticus (e87aad)

  301. Dustin: yeah, I am talking about a political consideration. This is in reference to something Daleyrocks said that referred to me in passing, up above; the issue was, under what circumstances is US involvement *justified*, and he was criticizing me for not being able to draw bright lines.

    I completely agree that the president should take his case to the legislature. I support the imposition of a no-fly zone over Libya; but I think the President had a constitutional obligation to get Congressional approval first, and he failed to do that. It’s not unprecedented, unfortunately, but it’s a bad thing ™, it’s unconstitutional, and IMO it’s an impeachable offense (although I don’t think the politics are right for impeachment and I don’t believe anyone thinks that Biden wouldn’t have done the same thing).

    aphrael (836cba)

  302. “At the time of the Constitution’s ratification, the world was not exactly overrun with democracies.”

    – Dustin

    It wasn’t exactly overrun with “governments” waging outright war against their own people, either, which is the more pressing issue here.

    Leviticus (e87aad)

  303. Dustin: I think it’s clear that Congressional approval wouldn’t be necessary if the Obama administration were to decide to take out the pirate groups off the coast of Somalia. That’s not an act of war.

    The question is: at what point does an organized group of people capable of using force to defend itself rise to the level of a state against whom the use of force would be war? This strikes me as being an extremely difficult question to answer. It can’t be tied just on US or international recognition – virtually nobody recognizes Taiwan, but attacking Taiwan would still be an act of war. It can’t really be based on a perception of the legitimacy of the government with its own people; the Yemeni government appears to be completely illegitimate at this point, but attacking it would still be an act of war.

    Attacking Qadaffi’s government is, to my eyes, clearly an act of war. A more interesting question would be: would attacking the rebels in Benghazi, who have declared themselves to be the legitimate government of Libya, who have been recognized by one of our allies as the official government, and who seem to have popular legitimacy within the territory they control, be an act of war?

    How is this different from FARC?

    aphrael (836cba)

  304. “I think it’s clear that Congressional approval wouldn’t be necessary if the Obama administration were to decide to take out the pirate groups off the coast of Somalia. That’s not an act of war.

    The question is: at what point does an organized group of people capable of using force to defend itself rise to the level of a state against whom the use of force would be war?”

    – aphrael

    Bingo. I agree wholeheartedly that that’s the question at hand. That aphrael and I disagree about which particular standard to use in answering that question is fine, but for my part I find some means of answering it (at least in the negative sense, i.e. what doesn’t constitute a state) in some of the core documents of democratic theory, namely Locke’s Second Treatise. Which I think is as good a legal foundation from which to argue as any concerned with the subject.

    Leviticus (e87aad)

  305. Dustin: I think it’s clear that Congressional approval wouldn’t be necessary if the Obama administration were to decide to take out the pirate groups off the coast of Somalia. That’s not an act of war.

    I am absolutely certain you are wrong.

    ART I SEC * “Powers of Congress”

    To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

    Dustin (c16eca)

  306. Section 8 rather than section asterisk

    Dustin (c16eca)

  307. The truth is that we have slipped farther and farther from a constitutional government. It is the legislature that has the power to decide who is a pirate, and what should be done with them. It is the legislature that has the power to decide when our nation is at war, and to ORDER the president to enforce the people’s will on such a matter.

    One man alone simply does not get this power from the constitution.

    This is why I keep urging people to read the constitution, and mean no insult by that. Obama’s war is illegal, period, unless Congress approved in some way (to include the war powers legislation allowing him to respond to an attack or danger to the USA).

    This is why Bush went to congress for an AUMF.

    Honestly, this bugs me more than even the national debt issue does.

    Dustin (c16eca)

  308. Dustin, IIRC, this was addressed during the Jefferson administration by not-explicitly-authorized action against the pirates in Tripoli. There’s an extensive discussion of it in The Constitution in Congress, but I don’t remember the details, and my copy is several thousand miles away at the moment so I can’t look it up. I will therefore simply have to note that I believe the early-nineteenth-century Congress settled this by deciding the executive had the power, but note that I can’t provide citations to back it up because I don’t have access right now. :{

    That said, the restrictive view of executive power you are postulating is one I’ve long favored, and one that (in my experience) is at odds with the general conservative position on the issue. :)

    aphrael (836cba)

  309. I think the question of legality is far less important than how devastatingly poorly planned out and implemented this not-war turned out to be. The statements that contradicted themselves within days, the multiple changes of goals, the abject idiotic statements, and e collapse of the coalition so rapidly, as well as walking away having not met the claimed objective …. Should I go on? We are being led by a feckless tard of an epic magnitude.

    JD (318f81)

  310. “This is why I keep urging people to read the constitution, and mean no insult by that. Obama’s war is illegal, period, unless Congress approved in some way (to include the war powers legislation allowing him to respond to an attack or danger to the USA).

    This is why Bush went to congress for an AUMF.

    Honestly, this bugs me more than even the national debt issue does.”

    – Dustin

    No insult taken, but you’re arguing with people who have read the Constitution fairly extensively, in addition to a lot of other contextual stuff informing it. aphrael’s citation of Jefferson re: Barbary is spot on; I made the same point. The definition and punishment of piracy must still be delegated to the executive; and as Art I Sec 8 makes perfectly clear, the punishment of piracy is not war.

    I don’t buy Yoo’s argument that the commencement of military action is always and everywhere the sole prerogative of the executive, to be checked only punitively by congress by their enumerated powers and not actively approved in advance; but I do think there are cases where that argument holds some water, and I think this is one of those cases. And, by the constitutional tradition of legitimacy through custom and usage, executive supremacy in military affairs is well-established. In fact (and I’ve said this before), if Bush had argued that the primary purpose of invading Iraq was the deposition of a dictator who had waged war against his own people and thus lost whatever limited legitimacy he retained, I would’ve been much more reluctant to criticize – and I was far more a captive of partisanship then than I am now.

    Leviticus (e87aad)

  311. I think the question of legality is far less important than how devastatingly poorly planned out and implemented this not-war turned out to be.

    In all honesty, I realize there is no legal conclusion to my complaints. No one is going to stop Obama because our nation pretty much does see Obama as an elected king who can redefine a country into a band of criminals, and wipe his ass with the constitution’s explicit granting of ‘when we use our military to fight people’ power to the congress, not him, the person legally required to execute congress’s authorized will on such matters.

    He is unbelievably bad at making war, JD. That is a more practical concern. But it wasn’t his coalition that collapsed. It was France’s. Obama is playing politics, cynically aware that Republicans in the House are not going to push very hard on this issue, which had the upside of granting him great political capital if the result was positive.

    Dustin (c16eca)

  312. “We are being led by a feckless tard of an epic magnitude.”

    – JD

    … Which is of course another important and relevant question; and I’m kind of inclined to agree with the sentiment, albeit in a mildly qualified form. Obama’s a campaigner; he has no stomach for governing, and principles by which to steel himself.

    Leviticus (e87aad)

  313. No insult taken, but you’re arguing with people who have read the Constitution fairly extensively, in addition to a lot of other contextual stuff informing it.

    What is my educational background?

    And I’m not sure what about my comments could be taken as an insult to either of you. Believe it or not, but I have read the constitution well enough to specifically prove my points.

    I do not think someone who has a fresh memory of the Constitution would say Congress lacks the power to define and punish piracy.

    Dustin (c16eca)

  314. Dustin.

    A French coalition collapsed?
    Who could ever have known?

    Well, I gotta say the Norwegians were smart enough to fly down, park, schedule refueling, go eat, get a room.
    A move Obama should appreciate… present!

    SteveG (cc5dc9)

  315. “Believe it or not, but I have read the constitution well enough to specifically prove my points.

    I do not think someone who has a fresh memory of the Constitution would say Congress lacks the power to define and punish piracy.”

    – Dustin

    I believe that you have read the Constitution thoroughly, but your points aren’t of the sort that can be “proved”, as 224 years of interpretive contention should make perfectly clear. You’re making points that must be discussed, because they cannot be “proved”.

    And again: I was not insulted, but we’re not pulling our arguments out of thin air anymore than you are.

    Leviticus (e87aad)

  316. What is your educational background, by the way?

    Leviticus (e87aad)

  317. Just one point, and I don’t mean to suggest I’m extremely sensitive to this:

    When I argue a point based on facts that I cite authoritatively, and logic that is clear, and that’s rejected in favor of someone who ‘doesn’t remember the details’ because they ‘read the constitution extensively’ and ‘know the context’, and further my factual claims are replied to with ‘no insult taken’, I get the impression I’m being insulted.

    I don’t much mind the condescension, but it’s crappy argument.

    Dustin (c16eca)

  318. “I’m arguing that when a government wages war against its own people, it ceases to be a legitimate government”

    Leviticus – How would you view Sri Lanka and the Tamil resistance or Colombia and FARC in light of the above statement?

    daleyrocks (9b57b3)

  319. Ah. Sorry. That’s not what I meant. I took it the other way – that by sighing that you wished people read the Constitution more (even though you did indeed say you meant no insult to aphrael or me) that you were implying that we weren’t trying to base our arguments in the Constitution at all. Which we were. So I took it not as an insult but as a potential insinuation which required some defense, albeit one free of animosity. I didn’t mean to imply that I have any sort of special knowledge or expertise in Constitutional matters or their context which you lack, only that you and I were arguing from the same [set of] documents, and each in favor of their applicability in this situation. I’ve studied Constitutional issues and Con Law as a student – more than most students, I would say – but that’s still a horribly poor place from which to claim any sort of epistemological supremacy, which was not my intention. In fact, I would go so far as to say that I have a somewhat impoverished grasp of the full context of these Constitutional matters… but not a non-existent one, and I do have a definite interest in the subject matter and am continually trying to learn more about it.

    Leviticus (e87aad)

  320. Leviticus

    > I’m arguing that when a government wages war against its own people, it ceases to be a legitimate government

    So Lincoln was illigitimate once war broke out? i mean he was waging war on his own people, right? mind you, the south was the aggressor, but he waged war, by fighting back.

    Aaron Worthing (e7d72e)

  321. daleyrocks: I would view the resistance as a matter of democratic prerogative, and the government military response – so long as it was sufficiently restrained and discriminating – as a proper exercise of prerogative in kind, until such point as the concerns of the Tamils or FARC became synonymous with the concerns of the wider people… all of which is to say that I see your point re: the difficulty of deciding when a particular rebel group can be equated with a sovereign people, but I don’t think that that’s a problem in Libya, given the decided lack of restraint and discrimination exercised by Ghaddafi’s military in that situation.

    Leviticus (e87aad)

  322. It’s Day 5 of the Libyan war and I think this shows why President Obama should have stayed home from his Latin America trip: The U.S. Chief of Naval Operations doesn’t know whether President Obama will approve plans to hand over control of the Libyan war, but even if that happens the US military may still be doing most of the work.

    DRJ (fdd243)

  323. Aaron: see my comment #324. It’s hard to say – and I may be the wrong guy to ask about that, insofar as I’m undecided as to whether or not southern secession was justified (even if it was secession in defense of a horrible, oppressive institution – which could be the basis of a valid counter-argument that the South had an illegitimate claim to sovereignty to begin with, as the beneficiary and defender of the institution of slavery).

    So the short answer is I don’t know.

    Leviticus (e87aad)

  324. As an aside, I’m bouncing back and forth between this thread and a book on M’Culloch v. Maryland – which is making the reading slow going, but there are a lot of interesting parallel issues at play here.

    Leviticus (e87aad)

  325. They must be freedom fighers right troll?

    DohBiden (984d23)

  326. ‘It wasn’t exactly overrun with “governments” waging outright war against their own people, either…’

    Our government waged war on its own people in Shays’ Rebellion and the Whiskey Rebellion.

    But, don’t let facts interfere with your little fairy tale version of the world.

    Dave Surls (0a54c1)

  327. “It’s Day 5 of the Libyan war and I think this shows why President Obama should have stayed home from his Latin America trip:”

    No, what he ought to do is resign from office and take Biden with him, for the good of the country, because neither one of them is capable of running a lemonade stand, much less the United States government.

    Don’t think that’s going to happen, though.

    Dave Surls (0a54c1)

  328. I’m going home, where there is no internet. Dustin – if you continue the discussion, and it takes a while for me to respond, please bear with me.

    Leviticus (e87aad)

  329. “the difficulty of deciding when a particular rebel group can be equated with a sovereign people”

    Leviticus – Yes, now you’re starting to get it. What qualifies some know nothing NGO to make decisions about the internal affairs of my country? Why are they experts? How do they determine the credibility of the grievances of the complainants to the legitimate government?

    This is all very touchy-feely, situational, seat of the pants stuff, IMHO.

    daleyrocks (9b57b3)

  330. “I’m undecided as to whether or not southern secession was justified”

    Sweet Jesus!!!

    I love Leviticus as if he/she were the third book of the Torah, but he puts me through way too many changes.

    Dave Surls (0a54c1)

  331. Alright Charles I’m back.

    As to nations using trans-national forces to try and influence world events. Trying to recall what I learned, I would suggest that you take a look at it like this. We all know that Micheal Corleone is the head of the of the Corleone Crime family. We are also pretty sure that he ordered the murder of his own brother Fredo. However, the most that we can prove is that the actual gunman and Corleone just happen to frequent the same diner for breakfast every other Monday. The never met beyond maybe in passing at the front door or at the cash register. If we brought that sort of evidence into the court, we would be laughed right back out. We would need to have phone converstations, a written order, photographic evidence of the weapon/money being changed hands, even a confession from someone saying that “Yes I helped to do…” or something tagiable to prove that Micheal gave the gunman the order. I am sure that is overly simply, but it is the best way I can think to explain it right now.

    I agree that in practice, holding governments accountable for their use of proxies has been difficult, and the law seemingly stacked against them. The only time we’ve really successfully coupled a government with a non-state actor in order to make war on that government was the Taliban, and only Iran and Pakistan recognized them as a legitimate government. When we went after Qaddafi in the 80s, I believe our argument was that the people carrying out the attacks were actually direct agents of the Libyan government.

    I am arguing that all that does not mean that Libya, or Syria, or Iran, have run up a tab that we have a right to call in.

    I would also suggest to most that there is a couple of new concepts out there in foreign policy world. One has been titled “Lawfare”, where basically some sort of legal justification to act has to be proven. The other is the famous “CNN Effect”, where if the stronger nation looks bad on CNN/Aljezzera/BBC/whatever then the weaker nation has won the war. Score double if the weaker nation manages to kill a number of the stronger nation’s populace. It will have looked like a case of bullying. The two of these seem to be living hand in hand.

    I agree entirely and it is unfortunate.

    I do not believe this war is illegal under the constraints of the Constitution. We had a moral imperative to act, had not only UN blessing but urging, it was undertaken in accordance with various treaties, nd Congress was not caught unawares. Needing explicit Congressional permission before the first bomb be dropped is murky, and I err on the side of the Executive, although I believe that in this modern age Congress should assemble within at the most a week to give its approval or to end it.

    This was an urgent situation, where the President and world’s own dithering forced us into a corner where the rebels were about to be overwhelmed and Qaddafi about to turn the coast red with blood. There wasn’t time, thanks to Obama’s incompetence, to cross every T and dot every I. On that, and now with this coalition “unraveling,” it shows that without effective American leadership, the world is feeble and shaky, France notwithstanding. Sarkozy has really stood up to the plate here.

    deeplemeblues (a78b16)

  332. Leviticus:

    Sorry you checked out before I got here. I’m familiar with your Lockean references and I’ve always had a problem with them.

    Locke presupposes some sort of uber-umpire/referee in matters of ‘legitimacy’. This ‘you are illegitimate therefore begone’ approach works only if there is some means of enforcing the decree.

    The South’s secession was illegitimate and the Northern government legitimate because the North won the bloody war. An alternate ending to the fray would have resulted in a different declaration of ‘legitimacy’.

    Military officers, competent judges, and good parents learn quickly that without the will and the ability to enforce an order it is best to refrain from giving the order to begin with. The ‘if you don’t clean your bedroom you are dead’ type of order soon falls to deaf ears.

    So too does the Lockean decree re: legitimacy. There is, in the end, only one way to determine which government is legitmate and which is not – the one still standing when the bullets, bombs, and missle quit flying is legitimate. The other failed by the only historically universal standard that can be applied – they lost.

    Old Bob (07c536)

  333. But no treaty can violate the constitution.

    Sure they can. Treaties are coequal with the Constitution. Both are the Supreme Law of the Land.

    Garbage. Sorry, Dave Surls, this is flat out wrong, and you have no idea what you’re talking about. Treaties have the same status as Acts of Congress. Both derive their power from the constitution, and are invalid to the extent they contradict it. Whoever told you otherwise, you shouldn’t believe another thing they said.

    Milhouse (ea66e3)

  334. “Garbage. Sorry, Dave Surls, this is flat out wrong”

    No, it isn’t, but I’m pretty much done arguing about it, so feel free to continue without me.

    And, I do know I’m talking about.

    Dave Surls (0a54c1)

  335. Aaron, trust me on this one: that part of the Constitution needs to be rewritten so that it is absolutely, positively clear that like laws passed by Congress, treaties also need to be pursuant to the Constitution. It doesn’t say that now, and it really ought to

    Sorry, it does say it, and perfectly clearly. I don’t know where people get the stupid stupid stupid idea that treaties are equal with the constitution. But it’s one of those code phrases, like “the Fed is a private corporation”, or “gold fringe on a flag makes it an admiralty court” or “the sixteenth amendment was never ratified so income taxes are unconstitutional” that should send anyone running for the hills. The constitution itself is clear that treaties are equal to statutes, not to itself.

    Milhouse (ea66e3)

  336. Whatever the authors intended it to say, what it does say is is that treaties, along with the Constitution, are the Supreme Law of the Land,

    No, it does not.

    Milhouse (ea66e3)

  337. Warfare requires congressional consent, Leviticus. That can be called AUMF or a more classical declaration of war, but it has to exist

    That’s not what the Prize cases say.

    Milhouse (ea66e3)

  338. The war of Ghaddafi against his people is grounds for the dissolution of govt.”

    Dude, what are you trying to do? Rival Eric for the most absurd statements made in a single thread?

    Just because you’re making war on your own guys, it doesn’t follow that that is grounds for dissolution of the government.

    Of course it does. What made him the government of Libya in the first place? The fact that he controlled it. Well, he doesn’t any more. So what makes him its government now?

    Milhouse (ea66e3)

  339. Dustin, IIRC, this was addressed during the Jefferson administration by not-explicitly-authorized action against the pirates in Tripoli

    If we’re talking about Jefferson v Barbary pirates, then the context actually favors Obama. In dealing with the Barbary pirates, we actually took military measures (or at least threatened to do so) not against individual pirates (which would make it parallel to modern Somalia or the 17th/18th century Caribbean pirates) but to the actual governments then in place in Tripoli, Tunis and the other Barbary states–until they decided to leave those Yankees alone. There’s a reason the Marine Hymn refers to “the shores of Tripoli” and not “the ships of Tripoli”.

    (Tripoli–plus la change plus la meme)

    Although come to think of it at least one of those rulers declared war on the US at one point (by the simple expedient of chopping down a flagpole, IIRC), so perhaps the example of the Barbary Wars is actually unfavorable to Obama. But in attacking the Barbary pirates, we actually attacked real countries and real governments, not a hodgepodge collection of individuals who committed crimes on the high seas.

    kishnevi (cc1ec4)

  340. “If Congress authorizes the President to use military force, that’s the same thing as a declaration of war.”

    As long as we nofify the guys we’re about to fight that we’re going to fight them as part of the process. That’s kind of the whole point of declaring war.

    Did we ever notify the French about the quasi-war? Or the Pasha of Tripoli about the declaration of war on him and his fellow pirates? Oh, wait, we never did declare war on them, did we? And yet Jefferson, who we can assume knew something about the constitution, thought it was OK to send the marines into combat without consulting Congress first. And Congress seems to have thought it was OK too. What does that do to your concept of what the constitution requires?

    Milhouse (ea66e3)

  341. Nope, Dave, you don’t know what you are talking about. And that’s not just the opinion of us, but of the Supreme Court.

    SPQR (26be8b)

  342. “…What does that do to your concept of what the constitution requires?”

    Me?

    I’m totally fine with how President Jefferson and the Congress handled the situation with the emirs along the Barbary Coast.

    What makes you think otherwise?

    Dave Surls (0a54c1)

  343. The French and the Barbary states were attacking American shipping before the US government did anything in the way of military action, and as I said above, at least one of the Barbary rulers officially declared war on the US. IOW, they went to war on us before we went to war with them.

    This does make a significant distinction from what is now going on in Libya.

    (If that sounds inconsistent with the first paragraph of comment 343–yes, it is. I’m still thinking this through and the more I think it through the less applicable I think the Barbary pirates example is.)

    kishnevi (cc1ec4)

  344. Letters of Marque are letters from a government authorizing piracy by civilians.

    Only against enemies of the issuing Power. Which is why it’s important to know whether there’s a state of war. And why the courts had to rule on that question. And what the courts repeatedly ruled was that a state of war can exist without Congress lifting a finger.

    Milhouse (ea66e3)

  345. I’m totally fine with how President Jefferson and the Congress handled the situation with the emirs along the Barbary Coast.

    Jefferson sent the marines off to fight without even notifying Congress. You’re OK with that? So how are you not OK with Obama sending the Air Force to attack Libya? Or have I mixed up who said what again? I do that.

    Milhouse (ea66e3)

  346. Comment by SPQR — 3/23/2011 @ 5:22 pm

    Actually, the precise wording of the Constitution can be read either way. And Dave is the one who suggested a constitutional amendment to clarify that all treaties are limited by and not equal to the Constitution.

    kishnevi (cc1ec4)

  347. Letters of Marque are letters from a government authorizing piracy by civilians.

    Oh, and that’s not quite true, because privateers aren’t quite civilians. They’re more like auxiliary members of the Navy. Which is why they were exempt from the Press.

    Milhouse (ea66e3)

  348. Comment by Milhouse — 3/23/2011 @ 5:30 pm
    This is the difference: at the time Jefferson acted, Barbary naval forces were actively attacking American shipping and enslaving American citizens.

    This does not currently apply. While Qdaffy has attacked the US previously (most notable being of course Lockerbie) he is not doing so now (or if he is, the US government is keeping the knowledge to itself).

    kishnevi (cc1ec4)

  349. As kishnevi noted above, the war with the Barbary Pirates may not be that relevant in light of this excerpt from the papers of President Thomas Jefferson:

    When Jefferson became president in 1801 he refused to accede to Tripoli’s demands for an immediate payment of $225,000 and an annual payment of $25,000. The pasha of Tripoli then declared war on the United States. Although as secretary of state and vice president he had opposed developing an American navy capable of anything more than coastal defense, President Jefferson dispatched a squadron of naval vessels to the Mediterranean. As he declared in his first annual message to Congress: “To this state of general peace with which we have been blessed, one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war, on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean . . . .”

    DRJ (fdd243)

  350. Actually there is a war court. The International Court of Justice, even though we aren’t members of the treaty anymore. Along with the International Criminal Court, even though we aren’t signatories of that treaty.

    Not as far as we’re concerned. Not so long as we have an armed force and are willing to use it.

    Milhouse (ea66e3)

  351. One has been titled “Lawfare”, where basically some sort of legal justification to act has to be proven.

    “Lawfare” is the sort of nonsense that Israel has crippled itself with, where lawyers have to approve every military action, and have veto power over the commanders in the field. And these lawyers think that “international law” trumps the need to achieve military objectives, and to win the war. If the IDF doesn’t do something about that tout suite, i.e. tell these lawyers to take a long walk off a short pier, Israel will be a thing of the past.

    Milhouse (ea66e3)

  352. Actually, the precise wording of the Constitution can be read either way

    No, it can’t. It’s clear that treaties rank equal with statutes. Statutes are subject to the constitution; therefore so are treaties.

    Milhouse (ea66e3)

  353. “Jefferson sent the marines off to fight without even notifying Congress. You’re OK with that? So how are you not OK with Obama sending the Air Force to attack Libya? Or have I mixed up who said what again? I do that.”

    That’s not what happened in the case of the Barbary Pirates. Congress was constantly involved in the decision making process on how to deal with the Barbary pirates, even before Jefferson took office. They didn’t issue a formal declaration of war, but they did pass acts authorizing the POTUS to use force against pirates, and later, at President Jefferson’s request, they specifically authorized the use of force against the Pasha of Tripoli.

    I can live with Obama launching air strikes against K-daffy without running it by Congress first (just because it’s the right thing to do), though, as I’ve said MANY times here, I agree with the posters who have said it would be a good idea to run it by Congress first before we start tossing missiles around, on account of Obama is a blithering idiot, and I very much doubt what he’s going to do is going to be in the interest of the United States and it’s citizens, except by pure coincidence.

    All I was saying about an authorization to use force is is that it’s not really like a declaration of war unless you let the other side know that’s what you’re going to do. Not much point in declaring war unless you let the other side know about it.

    Dave Surls (0a54c1)

  354. It is not constitutional to start defining countries in a way where the president can invade them without it being war.

    Says who?

    Milhouse (ea66e3)

  355. “All I was saying about an authorization to use force is is that it’s not really like a declaration of war unless you let the other side know that’s what you’re going to do.”

    Dave – Isn’t publicly debating and voting on the authorization as good as telling the other side what you are planning to do. Is it actually written somewhere a declaration of war or authorization to use military force must be delivered to the opposing side by a high ranking official in full military or diplomatic regalia, riding a white stallion or the war is no good? What are the remedies if your procedures are not followed, you know of not letting the other guys know – HEY, IN CASE YOU MISSED IT, OUR CONGRESS JUST DECLARED WAR ON YOU?

    daleyrocks (9b57b3)

  356. My understanding is that a formal declaration of war typically impacts our treaty structures such as NATO due to their wording, whereas authorizations to use military force normally do not so are more flexible.

    Chew on that.

    daleyrocks (9b57b3)

  357. It is the legislature that has the power to decide when our nation is at war, and to ORDER the president to enforce the people’s will on such a matter.

    No, it does not, and never has. Congress can declare war, but it can not order the president to make war. The president is fully entitled to sit back and do nothing about Congress’s declaration.

    Milhouse (ea66e3)

  358. Milhouse – This thing in Libya is not a war, it is a kinetic military action. New Obama Admin. euphemism.

    daleyrocks (9b57b3)

  359. later, at President Jefferson’s request, they specifically authorized the use of force against the Pasha of Tripoli.

    Only after he’d already dispatched the fleet with orders to do so. What would he have done had Congress said “no”?

    Milhouse (ea66e3)

  360. I think part of our problem here is that “war” is a fuzzy term. Any time someone shoots at our forces he is making war on us, unless he’s just a common criminal; in the case of very small attacking forces, such as a single person or a small band, that determination can go either way, and I believe it’s the president’s prerogative to decide. Hence the importance of Bush’s declaration on 11-Sep-2001, recognising that that day’s attacks had not been simply criminal acts but acts of war, and that the proper response was not to arrest the perpetrators and try them but to go to war against the entire gang and the entire network of which that gang was part. He didn’t need any congressional declaration for this, though he obtained one anyway. But as the Prize cases show, a legal state of war existed from the moment of the attacks.

    But not every time our military takes action are we going to war. When the president dispatches a few warships to help a friendly government put down a rebellion, they’re going into a shooting situation, and thus into a war, but I don’t think it’s right to say that the US is therefore declaring war on those rebels, which would require a congressional declaration. I think the president is entitled to send them on his own authority, and if they get shot at then a war exists.

    As for who’s a legitimate government, that seems to be entirely a matter of policy, which is the president’s prerogative.

    Milhouse (ea66e3)

  361. it’s silly for a pitifully broke little country what is printing printing printing money – 100 dollah bills y’all – for to buy their own treasury bonds to spend kajillions of depreciating dollars on sploding up stuff without a plan

    America needs a hobby. Maybe couponing or making decorative items for the home out of glass bottles that they would have thrown away anyway. But not swishing about North Africa like a pissed off drag queen with an 8-ball of cocaine up her nose what she hasn’t paid for. That’s not a good hobby I don’t think.

    happyfeet (ab5779)

  362. Odyssey Dawn she’s man enough for daffy but are you man enough for her? You can think it over go ahead take your time.

    happyfeet (ab5779)

  363. Mr. Feets – Martha Stewart I think has a show, maybe reruns, on hobbies like those of which you speak.

    daleyrocks (9b57b3)

  364. Martha Stewart told me to buy this ginormous swordfish what costs god knows how much and plop it on my kitchen island what I don’t have… what I was then to do was encrust it with 2-3 pounds of french sea salt what cost like $14 a pound. Then I was supposed to bake it for x number of minutes and then I had to take it out of the oven and plop it back on my kitchen island what I don’t have and then take this mallet thinger and knock all the salt off and then serve it to my guests right away while it was hot with the asparagus I was supposed to have started just a few minutes ago cause of you just wanna blanch it so it’s a delight to the tooth

    God love her but Martha and I, we’re not really living on the same planet.

    I bought a set of her tupperware once at Kmart but I ruined it all when I went through my I’ma learn to cook Indian food phase.

    happyfeet (ab5779)

  365. India is the future

    happyfeet (ab5779)

  366. “Only after he’d already dispatched the fleet with orders to do so.”

    I believe that he asked Congress for authorization before he would allow our ships to carry out offensive operations against Tripoli.

    ‘In response, “Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was ‘unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense…’

    ‘…In 1802, in response to Jefferson’s request for authority to deal with the pirates, Congress passed “An act for the Protection of Commerce and seamen of the United States against the Tripolitan cruisers”, authorizing the President to “… employ such of the armed vessels of the United States as may be judged requisite … for protecting effectually the commerce and seamen thereof on the Atlantic ocean, the Mediterranean and adjoining seas.”[15] “The statute authorized American ships to seize vessels belonging to the Bey of Tripoli, with the captured property distributed to those who brought the vessels into port.”[14]’

    http://en.wikipedia.org/wiki/First_Barbary_War

    Sounds like the right way to do it to me. Jefferson didn’t just ignore Congress and do whatever he felt like doing.

    And, I agree, in principle, with the posters who are, in effect, complaining that Obama is acting like a dictator when he orders U.S. forces to attack Libya without even consulting Congress, much less having Congress vote to authorize military strikes on Libya.

    Even if we had a good president (and we don’t, Obama is an extremely bad president), this is not a good way to do things.

    That being said, I agree 100% with the notion that we ought to hit K-daffy, and keep on hitting him until his government no longer exists.

    Dave Surls (70492e)

  367. fyi, i have a new post on the legality of the war. feel free to continue this 370 comment discussion there.

    Aaron Worthing (73a7ea)

  368. “Dave – Isn’t publicly debating and voting on the authorization as good as telling the other side what you are planning to do.”

    Might as well send a note or whatever through normal diplomatic channels while you’re at it.

    It’s customary to notify someone when you’re going to start fighting them.

    And, after we made a big fuss about the Japanese not following that custom to the letter when they let us have it in 1941, I think it would be in kind of bad taste for us not to do so now.

    I don’t like sneak attacks of that nature.

    Dave Surls (70492e)

  369. Leviticus, my educational background is law, philosophy, and software engineering. Though my real talent is just sous chef.

    I did not mean to suggest that you knowing my educational background should give me special status in the argument. I guess I was being too subtle. I thought you were dismissing my argument by citing someone else’s education. I really don’t like that kind of thing, even though I have taken several con law classes and probably could hold my own, I spent most of them insisting that Chemerinksy’s hornbook was terrible.

    Just wanted to clarify, since if it came across that I was trying to win an argument by authority that was backwards.

    Dustin (c16eca)

  370. Are you claiming that the fleet did not take offensive action until word came to them of Congress’s approval? That he did not dispatch the fleet with orders to take such action before asking Congress, and with no way to recall them should Congress refuse permission?

    Milhouse (ea66e3)

  371. “It’s customary to notify someone when you’re going to start fighting them.”

    Time and place?

    General, can you tell us when the secret invasion is going to start.

    Grow up.

    daleyrocks (9b57b3)

  372. Hi Dustin, on an an extremely off-topic example of thread drift, what kind of software engineering do you do?

    I’d second you with the detestation of Chermerinsky’s casebook. The editing of cases, combined with the lack of notice as to what was elided, was obnoxious.

    aphrael (836cba)

  373. DRJ, I agree: if Tripoli declared war on us first, then my point about them doesn’t hold.

    aphrael (836cba)

  374. Notification like when Israeli commandos showed up at Entebbe?

    “We’re here!”

    SteveG (cc5dc9)

  375. Aphrael, well, I was reliably told last night that I am both a coward and Hitler.

    I’m a sous chef/career student. My software experience is in web security technologies, though I was outsourced. I have a minor paranoia about being outed, so that’s all you’ll get out of me!

    Dustin (c16eca)

  376. Dustin, does that mean you can explain to Mr. Feets how to make swordfish with French sea salt without the swordfish and French salt? Or at least without the kitchen island?

    And, after we made a big fuss about the Japanese not following that custom to the letter when they let us have it in 1941

    As I remember it, the fuss was directed mostly to the fact that Japanese diplomats visited the State Department that morning (Washington DC time) and talked about negotiations over some of the outstanding issues, and managed to not let even a small clue slip that their next errand was to go back and get the Japanese Embassy packed up and locked down–thereby increasing the sneakiness factor.

    kishnevi (437df2)

  377. If that notice is not delivered on a silver salver prior to the commencement of hostilities, the complaining nations get to force the offending nation into a “do over.” It is one of the niceties of diplomacy, time honored for centuries.

    daleyrocks (9b57b3)

  378. I don’t give a damn what fake outrage FDR expressed in 1941, or what propaganda the press whipped up to spur ignorant Americans into outrage. The USA was already engaged in hostilities against Japan, both by cutting off their oil supplies and by sending lightly-disguised forces to fight them in China. Japan had every right to attack Pearl Harbor; if you were the Japanese government what would you have done (other than not invade China and commit horrible atrocities there in the first place)?

    Milhouse (1448a4)

  379. Dustin: you were not told such by me. :) I made a few comments and then went to the polynesian cultural center, getting home very late last night. :)

    Anyhow, I was curious because i’m also a software guy, so i’m always curious about other people’s security experience. :)

    aphrael (836cba)

  380. “Time and place?”

    Nope. No requirement for time and place.

    You’re just supposed to notify the other side that you’re now at war, or you notify them, that if they don’t do so and so, then you will be at war.

    That’s what international law says, and that particular piece of international law is a valid treaty that we signed onto, and it’s therefore also the Supreme Law of the Land.

    I think we ought to follow it, just like I think we ought to have Congress take a vote on whether we go to war or not.

    If we aren’t going to follow it, then we should formally withdraw from the Hague Convention III treaty.

    Dave Surls (bbbd48)

  381. “you were not told such by me. ”

    Aphrael, of course not!

    You and Leviticus are good faith and civil guys, and I really do enjoy arguing with you even though in this case I think you’re both quite wrong.

    Dustin (c16eca)

  382. “Japan had every right to attack Pearl Harbor…”

    Sure, they can do that…ss long as they don’t mind suffering the consequences.

    Dave Surls (bbbd48)

  383. milhouse

    > Japan had every right to attack Pearl Harbor; if you were the Japanese government what would you have done (other than not invade China and commit horrible atrocities there in the first place)?

    um, so they had a right to attack us at pearl harbor because… they were already committed atrocities and invading other countries…? huh?

    to those who actually defend what japan did, i will reiterate that aggression to defend aggression is aggression.

    Aaron Worthing (e7d72e)

  384. All I know is that I am eployed at a large biotherapeutic corporation in Clayton NC and I support Barack Obama with all my being. I invite all my friends and colleagues to re-elect Obama in 2012!! I LOVE YOU OBAMA

    Diane Pearce Loves Obama (460956)

  385. that is probably Talecris Biotherapeutics – it is a big nasty obamawhore company and I get all my biotherapeutics elsewhere

    happyfeet (a55ba0)

  386. “I LOVE YOU OBAMA”

    There’s no accounting for taste.

    Dave Surls (bbbd48)

  387. Nor for spammers.

    SPQR (26be8b)

  388. “if you were the Japanese government what would you have done”

    I would not have attacked the United States, on account of I don’t like losing wars and getting my brains kicked in.

    If I was bound and determined to pick on somebody, I’d go after Nepal or Liechtenstein or some place like that. Not America.

    Dave Surls (bbbd48)

  389. aggression to defend aggression is aggression.

    According to that theory, at every moment of the war they should have just stopped and lain down, and let the allies do whatever they liked. And in an absolute sense I suppose they should have. But their attack on Pearl Harbor was justified in the same sense that their fighting the Battle of Midway was justified; they were at war, and they fought accordingly.

    I would not have attacked the United States, on account of I don’t like losing wars and getting my brains kicked in.

    So you would have let the USA continue strangling you slowly, and sending undercover troops to fight you. That wasn’t an option. You had to do something. The Japanese theory was that they could fight the USA to a stalemate in a year or two, and make peace that would involve the USA lifting the embargo and letting them continue to occupy China and the rest of SE Asia in peace.

    Milhouse (4ab35c)

  390. “So you would have let the USA continue strangling you slowly…”

    No, I would have pulled my armies out of China and Indo-China like the nice Americans asked me to, and then I would have started cranking out stereos and cars that get really good gas mileage, which is what the Japanese ended up doing anyway.

    Anyhow, I would rather spend my days building stereos than spend them killing scads of Chinese and creating Greater East Asia Co-Prosperity Spheres for the glory of some Emperor, because killing Chinese and building Spheres is tedious work, and it makes people upset too.

    Dave Surls (bbbd48)


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