Is the Libya war legal? Under the 1973 War Powers Resolution it is not. President Obama has exceeded the 90-day period to receive retroactive authorization from Congress.
But things are not so simple. No president should accept and no president from Nixon on has accepted the constitutionality of the WPR passed unilaterally by Congress over a presidential veto. On the other hand every president should have the constitutional decency to get some congressional approval when he takes the country to war.
The model for such constitutional restraint is yes Sen. Obama George W. Bush. Not once but twice (Afghanistan and then Iraq) did Bush seek and receive congressional authorization as his father did for the Persian Gulf War. On Libya Obama did nothing of the sort. He claimed exemption from the WPR on the grounds that America in Libya is not really engaged in hostilities."
To deploy an excuse so transparently ridiculous isnt just a show of contempt for Congress and for the intelligence of the American people. It manages additionally to undermine the presidencys own war-making prerogatives by implicitly conceding that if the Libya war really did involve hostilities the president would indeed be subject to the WPR.
The worst of all possible worlds: Insult Congress weaken the presidency. A neat trick.
But the question of war-making power is larger than one presidents blundering. We have a core constitutional problem. In balancing war-making power between Congress and the presidency the Constitution grants Congress the exclusive right to declare war.
Problem is: No one declares war anymore. Since World War II weve been involved in five major wars and many minor engagements without ever declaring war.
But its not just us. No one does. Declarations of war are a relic of a more aristocratic era a time when for example an American secretary of state closed his departments code-cracking office because gentlemen do not read each others mail."
The power to declare war has become through no fault of anyone archaic and obsolete. Taken literally it is as useless as granting Congress the right to regulate horse-and-buggies.
We need therefore some new way to fulfill the original constitutional intent. The WPR was a good try but it failed because it was the work of Congress alone which tried to shove it down the throat of the Executive which in turn for over three decades has resisted it as an encroachment on the inherent powers of the commander in chief.
Moreover the judiciary which under our system is the ultimate arbiter of constitutionality has consistently refused to adjudicate this political question" (to quote one appellate court judge) and thus resolve with finality the separation-of-powers dispute between the other two co-equal branches.
A James Baker-Warren Christopher commission on the war powers issue which briefed President-elect Obama in 2008 was largely ignored at the time. But Libya gives the question new saliency and urgency. We need a new constitutional understanding mutually agreed to by both political branches that translates the war-declaration power into a more modern equivalent:
First formalize the recent tradition of resolutions (Gulf Afghanistan Iraq) authorizing the initiation of war recognizing them as the functional equivalent of a declaration of war.
Second establish special procedures for operations requiring immediacy and surprise for example notification of the House speaker Senate majority leader and their opposition counterparts in secret if necessary.
Third in such cases require retroactive authorization by the full Congress within an agreed period but without any further congressional involvement (contra the War Powers Resolution). The Constitutions original grant of power to Congress was for a one-time authorization with no further congressional constraint on executive war-making except of course through the power of the purse.
The Libya adventure is too much of a mess to expect mutual agreement on this kind of constitutional compromise now. Nor is Obama having bollixed the war powers issue in every possible way the man to negotiate this deal.
Resolution of this issue will require time dispassion and therefore inevitably a commission say chaired by a former president of each party Bill Clinton and George W. Bush and consisting of former legislators judges and generals with perhaps a couple of historians and not more than one international lawyer thrown in.
Then submit the commissions proposed law for approval by Congress and the president. And have David McCullough read the final text aloud at the signing ceremony. That will make it official.
We need a set of rules governing the legality of any future war. This will allow us to concentrate on the most important question: its wisdom.
Is the Libya war legal? Under the 1973 War Powers Resolution it is not. President Obama has exceeded the 90-day period to receive retroactive authorization from Congress.
But things are not so simple. No president should accept and no president from Nixon on has accepted the constitutionality of the WPR passed unilaterally by Congress over a presidential veto. On the other hand every president should have the constitutional decency to get some congressional approval when he takes the country to war.
The model for such constitutional restraint is yes Sen. Obama George W. Bush. Not once but twice (Afghanistan and then Iraq) did Bush seek and receive congressional authorization as his father did for the Persian Gulf War. On Libya Obama did nothing of the sort. He claimed exemption from the WPR on the grounds that America in Libya is not really engaged in hostilities."
To deploy an excuse so transparently ridiculous isnt just a show of contempt for Congress and for the intelligence of the American people. It manages additionally to undermine the presidencys own war-making prerogatives by implicitly conceding that if the Libya war really did involve hostilities the president would indeed be subject to the WPR.
The worst of all possible worlds: Insult Congress weaken the presidency. A neat trick.
But the question of war-making power is larger than one presidents blundering. We have a core constitutional problem. In balancing war-making power between Congress and the presidency the Constitution grants Congress the exclusive right to declare war.
Problem is: No one declares war anymore. Since World War II weve been involved in five major wars and many minor engagements without ever declaring war.
But its not just us. No one does. Declarations of war are a relic of a more aristocratic era a time when for example an American secretary of state closed his departments code-cracking office because gentlemen do not read each others mail."
The power to declare war has become through no fault of anyone archaic and obsolete. Taken literally it is as useless as granting Congress the right to regulate horse-and-buggies.
We need therefore some new way to fulfill the original constitutional intent. The WPR was a good try but it failed because it was the work of Congress alone which tried to shove it down the throat of the Executive which in turn for over three decades has resisted it as an encroachment on the inherent powers of the commander in chief.
Moreover the judiciary which under our system is the ultimate arbiter of constitutionality has consistently refused to adjudicate this political question" (to quote one appellate court judge) and thus resolve with finality the separation-of-powers dispute between the other two co-equal branches.
A James Baker-Warren Christopher commission on the war powers issue which briefed President-elect Obama in 2008 was largely ignored at the time. But Libya gives the question new saliency and urgency. We need a new constitutional understanding mutually agreed to by both political branches that translates the war-declaration power into a more modern equivalent:
First formalize the recent tradition of resolutions (Gulf Afghanistan Iraq) authorizing the initiation of war recognizing them as the functional equivalent of a declaration of war.
Second establish special procedures for operations requiring immediacy and surprise for example notification of the House speaker Senate majority leader and their opposition counterparts in secret if necessary.
Third in such cases require retroactive authorization by the full Congress within an agreed period but without any further congressional involvement (contra the War Powers Resolution). The Constitutions original grant of power to Congress was for a one-time authorization with no further congressional constraint on executive war-making except of course through the power of the purse.
The Libya adventure is too much of a mess to expect mutual agreement on this kind of constitutional compromise now. Nor is Obama having bollixed the war powers issue in every possible way the man to negotiate this deal.
Resolution of this issue will require time dispassion and therefore inevitably a commission say chaired by a former president of each party Bill Clinton and George W. Bush and consisting of former legislators judges and generals with perhaps a couple of historians and not more than one international lawyer thrown in.
Then submit the commissions proposed law for approval by Congress and the president. And have David McCullough read the final text aloud at the signing ceremony. That will make it official.
We need a set of rules governing the legality of any future war. This will allow us to concentrate on the most important question: its wisdom.
