Another Unconstitutional War
The grotesque extremes to which Muammar Gaddafi has gone to threaten the people of Libya -- and to act on those threats -- have left the self-proclaimed “king of kings” with few defenders in northern Africa, the Middle East or the international community. Even among frequent critics of U.S. interventions abroad, there is disgust with Gaddafi, and with the palpable disdain he has expressed for the legitimate aspirations of his own people. So it is that the advocacy for military intervention has spread far beyond the usual circle of neoconservative hawks.
The circumstance is made easier by the fact that the bombing of Libya by U.S. and allied planes is being carried out under the auspices of the United Nations. And with his words and his initial reluctance with regard to taking military action, President Obama has seemed to avoid many of the excesses of his predecessors. Yet, now the headline on CNN reads “Libya War,” and anyone who takes the Constitution seriously should have a problem with the fact that, once again, the United States is involved in a war that has neither been debated nor declared by the U.S. Congress.
The penchant of presidents to embark upon military adventures without consulting Congress is now so pronounced that it is barely noted anymore that the Constitution says "Congress shall have power to... declare War.” Unless the United States is immediately threatened, presidents aren’t supposed to declare wars or launch them on their own. Of all the checks and balances outlined in the constitution, none is more significant than the power to declare war. Yet, since World War II, presidents have launched attacks, interventions and wars without declarations. And that has happened again.
There are plenty of explanations for why this happens: Treaties that bind the United States to the United Nations. The War Powers Act. The general sense that members of Congress would prefer to let presidents call the shots. But the Constitution does not establish any escape clauses for members of the Congress, They are supposed to provide advice and consent -- or to deny it. Unfortunately, that just does not happen anymore.
When the United States ratified the United Nations treaty after World War II, Senators Henrik Shipstead and William Langer were the only senators who voted “no” on the UN Charter. Other senators, California’s Hiram Johnson and Wisconsin’s Robert M. La Follette Jr., expressed reservations. What was their fear? The senators worried that, under the agreement with the United Nations, presidents would involve U.S. troops in wars launched by the United Nations -- without ever consulting Congress. That fear proved to be well founded, as history would soon confirm, when President Truman sent U.S. troops to Korea as part of a UN mission -- but without a congressional declaration.
President Obama’s approval of an intervention in Libya has also skipped the Congress. Was this necessary? Of course not. Obama could have consulted Congress; indeed, if the issue was pressing, he could have asked that the House and Senate be called into session over the weekend. That is what Congressman Dennis Kucinich proposed, when he declared last week:
“Congress should be called back into session immediately to decide whether or not to authorize the United States’ participation in a military strike. If it does not, the action of the President is contrary to U.S. Constitution. Article 1, Section 8 of the Constitution clearly states that the United States Congress has the power to declare war. The President does not. That was the Founders’ intent."
The Ohio Democrat sent a letter to Congressional leaders "indicating that the national interest requires that Congress be called back quickly to Washington to exercise its Constitutional authority to determine whether our armed forces should participate in the UN mission."
"Both houses of Congress must weigh in," Kucinich added. "This is not for the President alone, or for a few high ranking Members of Congress to decide."
Consulting Congress does not mean that Congress will block a war. The constitutional system of checks and balances was not established merely to stop wars, although the wisest of the founders did hope that the requirements they imposed would "chain the dogs of war."
The decision to place the power to declare wars with the House and Senate was made in order to allow members of Congress to add their insights, to propose timelines, to set limits and parameters for military initiatives. To debate, to discussion, to sift and winnow the information: This is the point. Unfortunately, it is a point that Obama has missed. The United States is now deep into what CNN calls the ”Libya War,” yet there has been no congressional debate, no advice or consent, no checks and balances.
The Republic was well served by the drafters of a constitution, who gave the war-making power to Congress. They were wise, and right, to do so. Any president who steers the country into an offensive war without consulting Congress ill serves the founding document and the republic. John Nichols is Washington correspondent for The Nation. Copyright © 2011 The Nation – distributed by Agence Global