[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
From ABC News:
The legal license President Obama used to justify U.S. military intervention in Libya expires today, and there’s little sign the White House is working quickly to get it renewed.
Exactly two months ago, Obama notified Congress of his unilateral decision to engage in “limited military action” to help defend the Libyan people from attacks by their leader, Moammar Gadhafi.
But under federal law — the War Powers Resolution of 1973 — Obama is only allowed to keep U.S. forces engaged in hostilities for 60 days, unless Congress declares war, authorizes funding for the effort or extends the deadline.
Congress has not enacted legislation authorizing military involvement in Libya, and the White House has not made a public effort to comply with the rule.
Experts say this is the first time an American president has defied the War Powers Resolution’s deadline for participation in combat operations without any concurrent steps by Congress to fund or otherwise authorize the role.
Well, as regular readers of this blog know, this war was illegal from day one. Follow that link if you want to read my analysis of it. But the short version is this. Under the War Powers Act, the president does not have the ability to start a war without congressional consent. Period. The sixty-day provision only applies to when we are attacked. And if you think that this law is unconstitutional, then that doesn’t make it better—it makes it worse. His power under the Constitution is less than under the War Powers Act.
And if you think my view is radical, I want you to consider the words of a certain constitutional scholar:
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.
Who was this crazy constitutional scholar who said that? None other than Barack Obama.
And that is what makes this all the more infuriating. As I explained several months ago:
And all of this is designed to avoid the obvious illegality of it—declared by no less than candidate Obama and Senator Joe Biden. You know, in my day job, I occasionally have had to deal with a certain word: “willfully.” You might have been told that “ignorance of the law is no excuse for breaking it.” Well, that’s not entirely true. In some federal laws, particularly criminal federal laws, it is actually necessary to prove the defendant knew that his conduct was illegal. From Bryan v. the United States:
A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that his conduct may be violating. But he must act with the intent to do something that the law forbids.
And indeed, in some limited cases the courts have even required you to know which exact statute has been violated. [Warning: this is not legal advice. Consult with your own lawyer on how this rule might apply to your life.]
My point is this, and maybe this will explain why I have written three posts on the legality of this war (counting this one). If you believe that Obama is breaking the law, then he is not just accidentally doing it. This is not a case where the President honestly disagrees about what the Constitution and other laws say and just got it wrong. He is willfully doing it, as that term is understood in that case law. He has said he cannot do this. His Vice President has concurred. And yet here he is today, doing precisely what they told you he could not legally do.
But up until now they could depend on the public’s collective ignorance of the law and the common myth that the War Powers Act allows the president to start wars on his own without congressional approval and without us being attacked. He had that fig leaf that allowed him to pretend that he could legally do what he himself told us he couldn’t. And that leaf falls off at midnight.
And I still remember Rep. McClintock’s speech on the floor of the House:
“Shame on us if we allow this act to stand unchallenged any longer,” McClintock said. It is our national shame that he said this almost two months ago and our Congress did nothing about it. I don’t care if you support the war effort, think Gdaffy is a bad guy, etc. I think Gdaffy is a bad guy and I will celebrate if we put a bullet in his head. But it is not enough to do the right thing. You have to do the right thing, the right way.
[Posted and authored by Aaron Worthing.]