The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes...
They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians...
We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”
So the argument is, in a nutshell:
1 The UN said it was OK.
2 We're not fighting all that much and
3 We're only fueling other peoples planes now so leave us alone.
This has to be the weakest argument I've seen by any president. Even Bush at least made an argument, albeit false, that Saddam posed a risk to the US via WMDs. But the biggest problem here is the focus on the War Powers Act and not the constitution. We should even look at the legal grounds for the UN decision.
First the UN Charter. As I posted on March 21, 2011 the UN has no legal or Charter grounds for taking sides in a civil war (which is what is going on in Libya):
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.
My emphasis on paragraph 7. Under that paragraph it is not legal for the UN or any of it's member states, including the US, to interfere with the domestic issues of another member state.
I went on to cite the portion of the charter dealing with the Security Council:
Chapter VII contains the following:
In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.
So the Security Council cannot take sides in a conflict that is brought to it's attention. Furthermore all parties must be allowed to comply with other peaceable means to a resolution of the conflict. This was not done.
On these bases the actions by the UN and the Security Council are illegal and therefore it cannot provide legal cover for the US (and any of the other parties involved in the violation of Libyan sovereignty) actions.
Moving on, lets look at the constitution. The constitution is very specific as to who has the power to declare war and who has the power to command the military once war is approved. Section 8:
Section 8 - Powers of Congress
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
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;
A Letter of Marque is:
Letter of Marque
Archaic. A letter of marque was issued by a nation to a privateer or mercenary to act on the behalf of that nation for the purpose of retaliating against another nation for some wrong, such as a border incursion or seizure.
A Reprisal is:
Archaic. An act taken by a nation, short of war, to gain redress for an action taken against that nation. For example, seizing a ship in retaliation for a seized ship.
So it is clear that ONLY congress has the ability to declare war and, according to the text, is the only body that can ask any other nation (or private party) to act on it's behalf. By that reading the "NATO is doing the work" excuse looks very weak as I don't think that the NATO alliance means that Congress is giving blanket approval for anything NATO does per request by the executive. That is, however, a debatable point. What it not debatable is that only Congress can declare war.
Let's move on to the War Powers Act. I discussed this at length in the American Big Man series back in 2006:
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.
SEC 8. (c)
For purposes of this joint resolution, the term "introduction of United States Armed Forces" includes the assignment of member of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.
Nothing in this joint resolution--
is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or
shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.
These are my italics. I understand 8(d)(2) to read that the War Powers Resolution does not grant any authority to the president that he would not have had in the absence of the resolution. So The President can only assume his commander in Chief rights where there is "imminent" danger.
So we've established that the executive can only assert War Powers privileges in the case of an imminent threat. So let's go back to the argument offered yesterday:
1)"The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes..."
Sorry, but the War Powers Act clearly states that if the military is so much as "commands" "coordinates", "participates" or "accompany" "the regular or irregular forces of ANY FOREIGN COUNTRY OR GOVERNMENT then the president is bound by War Powers' requirements of reporting and approval. And yes, NATO is made up of foreign forces.
2)"They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians..."
What part of "coordinates, participates or accompany" does the White House not understand? What part of "Nothing in this joint resolution shall be construed as granting authority to the President with respect to the introduction of United States Armed Forces into hostilities or into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this resolution" does the executive not understand?
Furthermore that is the *current* status of events (if they are to be believed). The initial invasion of that country was an act of war against a sovereign nation. What part of Congress can only declare war does the executive not understand? Furthermore we've already demonstrated that neither the UN general body nor the Security Council has the legal grounds for it's involvement in Libya. In addition, it is clear from the reports coming out of Libya that this is not about protecting civilians. Protecting civilians means protecting them on both sides. Bombing Tripoli, for example, does not do that.
3) "We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”"
Again, What part of "coordinates, participates or accompany" does the executive not understand?
So it is clear that the three legs of the Obama administrations argument for the unconstitutional war in Libya are null and void by the clear language of the constitution, the War Powers Act and the UN Charter. There is no legal ground for that war's beginning nor for the US' current involvement. Congress must assert it's constitutional powers and either approve the war with a formal proclamation and fund it or it should put an end to the war.