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

Of course I first drew the conclusion that it was an illegal war here, and have since talked about it here and here.

Well, first, I found myself completely outclassed by the argument by Mike Ramsey over at The Originalism Blog.  We arrive at just about the same conclusion, but bluntly he just has a deeper understanding of the material.  Here’s one choice paragraph to give you a taste:

The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities.  John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.”  Blackstone and Vattel, two of the 18^th century legal writers most influential in America, also used “declare” in this way.  Vattel wrote: “When one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.”  Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks.  (References are found in my Chicago Law Review article, Part III; for a more comprehensive account, see this outstanding article by Saikrishna Prakash). Thus in 18^th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war.

So go read it, if you are inclined.

Meanwhile Gallop reports that 47% of Americans approve of the mission, 37% disapprove and 16% have no opinion.  Of course the problem with those numbers is that some people’s responses are more complicated than that.  For instance, I wanted the president to do this, but legally, by asking for an authorization to use force first.  So I consider this war illegal, but the ultimate goal to be desirable (if the President actually wants to get rid of Qdaffy). Still its worth noting that the Gallop report also says that the approval rating “is lower than what Gallup has found when asking about approval of other U.S. military campaigns in the past four decades.”  Certainly as a political matter, the sudden and badly explained decision to go to war appears to be hurting him—a reason to follow the Constitution, if the fact that it is the Constitution isn’t reason enough.

But of course the President is trying to avoid explaining himself to the American people:

President Barack Obama is resisting pressure to deliver an Oval Office speech explaining his policy on Libya — in part, because he doesn’t want to equate what he regards as a smaller, time-limited mission with the wars in Iraq and Afghanistan.

Which is stupid.  I remember when Reagan dropped bombs on Gdaffy, a one off affair, and Reagan was on that night, explaining why he decided to drop them.  Here, take a gander:

That’s what Presidents do even if it isn’t a full scale war.  Seriously, who is advising this guy?  And is he listening to their advice?

And is there any hope for some real blowback over this, at least resulting in the censure resolution I am advocating for?  Well, consider this.  First that the LA Times reports that there is a “Constitutional Firestorm” over the thing, discussing in part Boehner’s letter to the President.   And George Stephanopoulos writes:

Here’s an indication of how angry are Congressional Democrats that President Obama put the U.S. in the mix in Libya without consulting them:

A top Congressional confidant of House Minority Leader Nancy Pelosi, California Democrat Rep. George Miller, suggested this morning that President Obama acted outside his Presidential authority by engaging in military action without consulting Congress.

An MSNBC anchor asked Miller if he thinks the President acted with proper legal authority in taking military action.

“Well, I’m one of those people who believe that when you’re not defending the shores of the United State, you have an obligation to come to the Congress and ask for permission. So no, I don’t agree with that,” Miller said. He later said he thinks Obama would have gotten permission from Congress.

Of course, the White House responded angrily to all that pushback:

The White House fired back Thursday at criticism over the Libya military mission, saying lawmakers were briefed and consulted at length before air strikes began.

White House press secretary Jay Carney read off a list of dates when administration officials briefed members or testified on the Hill during an off-camera briefing held the day after President Obama returned from a trip to South and Central America.

The press secretary also said the U.S. had to act quickly when air strikes began Saturday because further delay would have “cost lives.”

Cost lives?  Are you fraking kidding me?  You have sat on your hands, Mr. President, for over a month about this, so don’t pretend to me that this was such a sudden emergency.

And Barney Frank is not buying this line about consultations, either:

But in an interview with POLITICO, Frank, the liberal congressman from Massachusetts, said “consultations are no substitute” for seeking Congress’s permission to go to war.

“Consultations, schmonsultations,” Frank said.

Frank also didn’t buy Carney’s argument on Thursday that Obama couldn’t ask Congress to go to war because doing so would have given Muammar Qadhafi time to slaughter Libyans in Benghazi. “They should have asked earlier,” Frank argued, also suggesting that publicizing a request for war could have even spooked Qadhafi.

Still, Frank said, Obama can make some amends by asking Congress to approve further attacks in Libya before authorizing them. “I wish he had done it differently, and it’s not too late for him to do it differently,” he said.

Meanwhile the euphemisms continue, including my unfavorite:

U.S. officials avoid describing the operation as a war. White house press secretary Jay Carney said it was “a time-limited, scope-limited military action.“

(emphasis added.)  Hey, can we come up with a power-limited, scope-limited President?  Please?

[Posted and authored by Aaron Worthing.]

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

As you might have heard, yesterday there was a terrorist bombing kinetic military action carried out by terrorists honor-challenged Palestinian freedom fighters* of an Israeli bus stop.

Dark humor aside, I didn’t comment very much on the savage attack because I just didn’t find anything to say besides the simple evil of it, which is self-evident to those capable of recognizing it.

But today, googling around the net, I saw where Jeffrey Goldberg takes Reuters to the woodshed for this quote:

Police said it was a “terrorist attack” — Israel’s term for a Palestinian strike.

And that is where we get the title of this piece: from Mr. Goldberg’s title.  Really, it’s breathtaking in its bias.  They kill random civilians.  Anyone could have died in that blast.  A tourist from a far off land, a baby…  hell a Muslim, even.  But al Reuters editorializes that way.

Anyway, read the whole thing.

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* In case you don’t know me, I am being very sarcastic here.

[Posted and authored by Aaron Worthing.]

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

Why do people do this?  Why do they have to come up with ever more ridiculous euphemisms designed to take the color completely out of our language, to render it all a dull beige?

Well here, we know why they are doing this: to avoid admitting the obvious fact that we are at war.

In the last few days, Obama administration officials have frequently faced the question: Is the fighting in Libya a war?  From military officers to White House spokesmen up to the president himself, the answer is no.  But that leaves the question: What is it?

In a briefing on board Air Force One Wednesday, deputy national security adviser Ben Rhodes took a crack at an answer.  “I think what we are doing is enforcing a resolution that has a very clear set of goals, which is protecting the Libyan people, averting a humanitarian crisis, and setting up a no-fly zone,” Rhodes said.  “Obviously that involves kinetic military action, particularly on the front end.”

Rhodes’ words echoed a description by national security adviser Tom Donilon in a briefing with reporters two weeks ago as the administration contemplated action in Libya.  “Military steps — and they can be kinetic and non-kinetic, obviously the full range — are not the only method by which we and the international community are pressuring Gadhafi,” Donilon said.

Read the whole thing, if you think you can resist the urge to beat your head on something while reading it.

You know over a year ago I started a blog that I am badly neglecting these days, called, um…  let’s call it Allergic to B.S. Or as I jokingly call it, the blog that can’t be named.*  And that was because it really captured a big part of my personality, which is where I have little patience for B.S., even when I agree with it.  And of course it grates twice as much when I don’t.

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.

And these hapless bureaucrats are forced to engage in this degrading euphemism to avoid telling us what we all know: we are at war.  And you can’t deny it.  Our military is attacking their military and not just once, but on a sustained basis.  If you believe that the war with Japan started when they bombed Pearl Harbor, and not when Japanese officials declared war after the fact, or when Congress formally declared war shortly thereafter, then you have to believe we are at war with Libya.**

This is not about whether we believe this war is wise or just.  I believe it is both (although I am with McCain–this would have been a better idea weeks ago).  But it is not the President’s call to make, or the U.N.’s.  Absent an attack or at least an imminent threat of an attack on America, its territories, its forces, or even perhaps its civilians, the President can’t do this without Congressional approval.

And what do we do if a member of the Air Force refuses an order to bomb Libya because the President didn’t have the authority?  Do we jail him or her because they stood up for what the Constitution actually said?  For agreeing with what the President and Vice President themselves have said, and having the courage of his or her convictions?

I think that this might be the time for military civil disobedience.  The Uniform Code of Military Justice repeatedly states our military is only obligated to obey lawful orders (see, e.g., here).  This is not a technicality, but an important bulwark in the protection of this republic.  Free nations are overthrown by soldiers who blindly follow unconstitutional orders.  When the President requires those of you in the military to act unconstitutionally, you have a positive duty to disobey.

Now a complete stoppage could potentially endanger the lives of other members of the military.  I am not contemplating that.  But I am asking if perhaps one or two pilots in the military might decide to take a stand.  I don’t believe two pilots would impact the efficiency of the operation, and I know it is a lot to ask of those individuals.  And this disobedience should be done in the Martin Luther King way: openly and peacefully refusing to obey those orders and offering no resistance as they arrest you.  Don’t hide what you are doing, just say it openly, “I refuse to follow this order because I believe that this engagement is unlawful under the United States Constitution.  Only Congress can declare war and Congress has not authorized force against Libya in any way, shape or form.  Therefore I refuse this order and will peacefully submit to incarceration if necessary.”

And bluntly this would be a great test case.  The courts might be reluctant to step in if it is merely seen as a fight between Congress and the President.  But if a good and conscientious airman’s freedom is on the line, I believe the courts will be more inclined to take these constitutional issues more seriously.

I am not quite ready to endorse this idea, it’s just something I am tossing around.  But one way or the other, the rule of law has to be asserted over the willful lawlessness of this President.

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As I wrote this, I found a Daily Show clip that made a very similar point, only they were like funny and stuff:

That’s gonna leave a mark.

Also, astute readers will recognize that this is in direct contradiction of a post I wrote yesterday where I accused Jon Stewart of (1) unfairly attacking McCain and two other Republicans as hypocrites, while (2) ignoring Obama’s hypocrisy on the war.  Of course Stewart’s attack on McCain et al is still unfair, but at least Stewart is attacking both sides and I have written my mea culpa and correction at the original post.

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* Yes, that is a Harry Potter allusion.  Deal with it.

** I am not saying that what we are doing in Libya is as vile as what the Japanese did at Pearl Harbor.  I am just saying that one military attacking another is inherently war, especially when it is a sustained assault like we have here and not a one-off.

[Posted and authored by Aaron Worthing.]

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

Update: Ugh, first the video didn’t work. Then when I fixed it, it turned out that the player launched automatically, which is annoying. But I replaced it with a youtube version that behaves itself. Sorry for the inconvenience.

Consider this a palate cleanser.  I have been leery about this movie, but this trailer makes it start to look good.

A few months back the director of the movie said this about the new Captain America: “He’s a guy that wants to serve his country, but he’s not a flag-waver. We’re reinterpreting, sort of, what the comic book version of Steve Rogers was.”  And more than a few conservatives gnashed their teeth at that, believing that they were trying to water down the patriotism.  But I stayed out of that, because of two things.  First, I wanted to see the finished product before I judged it.  Second, as patriotic as I am, sometimes Captain America could be a bit much…

Too much of anything can be a bad thing, and so I felt that the director might have just been talking about that.

Of course we still haven’t seen the full finished product, but here’s what you do see in the ad.  You see a young man who so badly wants to serve and defend his country he was willing to risk his body in a scientific experiment, and then goes on to put his life on the line for his country.  How much more demonstratively patriotic do you need him to be?

We can and should be concerned that our movies are being watered down in their support for this country and American values, generally, or that directors would feel pressure not to call out evil by name.  For instance this report indicates that the desire for Chinese money led the people remaking Red Dawn to change the villains from the Chinese to the Koreans.  As in, after the fact they used computer trickery to change the Chinese flags into Korean ones.  And sure, I haven’t seen the finished product on that, either, but the report doesn’t really leave a lot of ambiguity on their intentions–unless the report is inaccurate.

(Update: I am not saying that the original movie had the Chinese as the bad guys. I am saying that they shot this remake originally with the Chinese as the bad guys and then changed it after the fact. Sorry if I was unclear on this point.)

Ironically that means the new Red Dawn has the same plot of this recently released video game, Homefront (warning: it’s allegedly not very good, and the single player campaign is criminally short).

And it is worth noting that the script in Homefront was written by one of the minds behind Red Dawn.

We should be concerned about this cultural shift.  Hollywood has already gone as far as to create propaganda in the war on terror that drove a terrorist to kill American soldiers.  But we should be careful not to jump to conclusions, either.

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P.S.: I am sure you noticed the reference to “Mr. Stark” in the ad. This is part of their ongoing strategy to set up an Avengers movie.

[Posted and authored by Aaron Worthing.]