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Does the Law Matter?

Posted By L. Reichard White On March 30, 2011 @ 4:43 am In News | Comments Disabled

The United States (Government) hasn’t been legally at war since September 12, 1945, when the Japanese forces in Southeast Asia surrendered to Allied Commander Louis Mountbatten in Singapore, ending World War II.

And that includes the current action in Libya.

That’s right, the Korean “War,” the Vietnam “War,” the first Iraq “War,” the second Iraq “War” (euphemistically named Operation Iraqi Freedom), and the Afghanistan “War” aren’t wars. At least not according to the U.S. Constitution — which document explains how wars are supposed to happen. This way:

ARTICLE. I. All legislative Powers herein granted shall be vested in a Congress of the United States… Section. 8. The Congress shall have Power… Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water The United States Constitution [1]

The U.S. President doesn’t do it alone. In fact, as founding father James Madison explained, “...the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

So, how did they get us into these non-wars? Maybe this explains it – – –

“I think it is a fact of modern history that declarations of war are gone. I think they are anachronistic. Clearly the Constitution assigns the declarations of war function to Congress and only to Congress. But declaring war has consequences in a technologically advanced world that nobody wants to face. Instead what you do is you call it a police action, as we did in Korea, or you call it something else, but you do not formally take that giant leap of declaring war.” –Rep. Henry Hyde (R-IL), June 7, 1995

The first “war” after WWII, the Korean “War,” was fought without any explicit Congressional authorization what-so-ever, declared and carried out under the auspices of Mr. Harry S. Truman, mostly on his own recognizance. Similarly, in an early iteration of Rep. Hyde’s dictum, even though North Vietnam officially declared war on the U.S., the U.S. never officially declared war on North Vietnam.

Congress wanted to avoid the “giant leap” of declaring war. As per Rep. Hyde above, they wanted to do it by any other name. But, paradoxically, they wanted to do it in a way so they wouldn’t lose their Constitutionally mandated prerogative — so Congress passed The War Powers Act of 1973 [2]. Over President Richard M. Nixon’s veto.

In this act, there are three excuses for the President to send U.S. forces into “harm’s way.” It gives three ways and three ways only to a war — or a non-war as the case may be. Specifically (text directly from the document itself):

Section (c), clause 1. a declaration of war, (the Constitutional way –l.r.white)

Section (c), clause 2. specific statutory authorization (Congress passes a specific law –l.r.white)

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

Clearly clause 1. and 2. above don’t apply to the Libya what-ever-it-is. That leaves clause 3.

So, did Libya create a “national emergency” for the U.S. by an “attack upon the United States, its territories or possessions or its armed forces?”


Maybe we should give the power elite even more power. Maybe we should let them go to war more easily. Maybe we should replace the War Powers Act with a more wimpy standard and move back toward Truman and the Korean “War.” Maybe, for example, it would be OK to pursue policies that kill folks in foreign lands, if, say, it would somehow be of “vital national interest to the United States.” Maybe, as former Secretary of State Madeline Albright suggested — backed-up by Bill Clinton’s Ambassador to the U.N. Bill Richardson — it should be OK to kill half-a-million Iraqi kids again as long as it was “an instrument of our [U.S. foreign] policy. [3]

But does this Libyan what-ever-it-is even meet this wimpy “vital national interest” standard? Not according to Mr. Obama’s Secretary of Defense Robert Gates. Here’s what he said on ABC’s This Week, March 27, 2011, when questioned by host Jake Tapper – – –

Jake Tapper: Do you think Libya posed an actual or eminent threat to the United States?

Defense Sec. Robert Gates: No. No. It was not, it was not a vital national interest to the United States.

So, according to Defense Secretary Gates, the Libya what-ever-it-is doesn’t even meet the dummed-down “vital national interest” standard, let alone War Powers Act Clause 3 above.

Here’s what Secretary of State Hillary Clinton had to say about such authorizations when she was a U.S. Senator:

“If the administration believes that any, any, use of force against Iran is necessary, the president must come to congress to seek that authority.” –Sen. Hillary Clinton, Feb 14, 2007

Vice President Joe Biden agrees.

The president has no Constitutional authority to take this nation to war against a country of 70 million people unless we are attacked or unless there is proof that we’re about to be attacked. And if he does, if he does, I would move to impeach him.” –Senator Joe Biden, Chris Matthews’ Hardball [4]

But worse, Mr. Obama himself stated, unequivocally,

“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.” Q&A with Charlie Savage, The Boston Globe, December 20, 2007 [5]

So current Sec. of State Hillary Clinton, Vice President Joe Biden — and Mr. Obama himself — specifically say Mr. Obama can’t legally or constitutionally do what he just did, send U.S. troops into battle without congressional approval. In this case, in Libya since it didn’t attack the U.S. and doesn’t even qualify as a “vital national interest.” .

Notice that “saving civilians” — in Libya or anywhere else — isn’t an excuse to go to war. If, that is, you believe that 2,000 pound bombs, Tomahawk missiles [6] and other munitions, many of them containing depleted uranium (DU) [7], which may cause cancer for generations, actually will save civilians lives.

And The War Powers Act doesn’t say it’s OK to send U.S. troops because you have allies either.

So, whatever standards you want to apply, Mr. Obama has broken the law. Even he agrees. As Rep. Dennis Kucinich suggests, then, there’s a problem. What should be he says, a big impeachable problem [8]. That is, if The Law matters, if indeed, as regularly mouthed by pundits and other blithering idiots, we have a government of laws, not of men, then Mr. Obama must be impeached.

So, does the law matter? Or doesn’t it? Can the next U.S. President, following in the footsteps of Hitler, Harry S. Truman, Moussolini, Saddam, George H.W. Bush, Bill Clinton, and Barak Obama, etc. go to “war” whenever he or she pleases? Or will Mr. Obama be impeached?

Anybody want to place a bet?


Article printed from Antiwar.com Blog: http://antiwar.com/blog

URL to article: http://antiwar.com/blog/2011/03/30/does-the-law-matter/

URLs in this post:

[1] —The United States Constitution: http://www.house.gov/house/Constitution/Constitution.html

[2] The War Powers Act of 1973: http://avalon.law.yale.edu/20th_century/warpower.asp

[3] OK to kill half-a-million Iraqi kids again as long as it was “an instrument of our [U.S. foreign] policy.: http://www.youtube.com/watch?v=5S1YkQs5nXQ

[4] –Senator Joe Biden, Chris Matthews’ Hardball: http://www.youtube.com/watch?v=p0gDGO2GzHM

[5] Q&A with Charlie Savage, The Boston Globe, December 20, 2007: http://www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/

[6] 2,000 pound bombs, Tomahawk missiles: http://www.globalresearch.ca/index.php?context=va&aid=23985

[7] depleted uranium (DU): http://en.wikipedia.org/wiki/Depleted_uranium

[8] he says, a big impeachable problem: http://politicalticker.blogs.cnn.com/2011/03/21/kucinich-says-obama-is-committing-impeachable-offense/

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