Yale professor Bruce Ackerman: "Obama’s Unconstitutional War"

[alp227]

In taking the country into a war with Libya, Barack Obama's administration is breaking new ground in its construction of an imperial presidency -- an executive who increasingly acts independently of Congress at home and abroad. Obtaining a U.N. Security Council resolution has legitimated U.S. bombing raids under international law. But the U.N. Charter is not a substitute for the U.S. Constitution, which gives Congress, not the president, the power "to declare war."

After the Vietnam War, Congress passed the War Powers Resolution, which granted the president the power to act unilaterally for 60 days in response to a "national emergency created by attack upon the United States, its territories or possessions, or its armed forces." The law gave the chief executive an additional 30 days to disengage if he failed to gain congressional assent during the interim.

But, again, these provisions have little to do with the constitutionality of the Libyan intervention, since Libya did not attack our "armed forces." The president failed to mention this fundamental point in giving Congress notice of his decision on Monday, in compliance with another provision of the resolution. Without an armed "attack," there is no compelling reason for the president to cut Congress out of a crucial decision on war and peace.

Full article: http://www.foreignpolicy.com/articles/2011/03/24/obama_s_unconstitutional_war

[krawhitham]

1. link

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=433&topic_id=635010

[dkf]

2. Sorry... was that a war resolution?

So now they tell us. Funny I thought it was two days and out.

[krawhitham]

6. Sorry, we are enforcing a no fly zone, we are not at war

[dkf]

17. So they say.

[former9thward]

23. When you shoot hundreds of missiles into a country

destroying infrastructure and killing people you are at war by any definition.

[PurityOfEssence]

27. By the definition of the War Powers Act, yes, it is a war. It's also more than a mere no-fly zone.

That's another load of grifting deception we've been sold. If you read the UN Resolution, it provides for damned near anything, including the proverbial "boots on the ground", a full invasion, land, air and sea operations and whatever suits the meddling intruders. Pretty much the only thing they can't do is be an occupying force after the big festivities.

It's a violation of the UN Participation Act, as well, and a violation of the very UN Charter it claims to use as a justification, because the UN Charter clearly states that the forces made available are subject to the ratification of the member states to satisfy their Constitutions.

It's not just high-handed, it's flagrant imperiousness.

[tekisui]

31. Most certainly an act of war.

[Vattel]

3. Haven't you got the memo?

No serious legal scholar believes that Obama has acted illegally in involving us in Libya. Or so I have been told. Seriously, though, it is remarkable how people who know little to nothing about the relevant law have attempted to dismiss any and all questions about the legality of Obama's actions as "smears" or "baseless garbage."

[geek tragedy]

4. "No compelling reason?" Except for the fact that Congress was out of session

and if Obama waited for them to come back, Benghazi would have been sacked and turned into a slaughterhouse.

And, of course, this sort of thing has never happened before in US history.

[Teaser]

5. yeah, he is worse than Hitler

I'm glad people are finally seeing that.

[Name removed]

28. Deleted message

Message removed by moderator. Click here to review the message board rules.

[treestar]

7. We are not in a "war with Libya"

[PurityOfEssence]

26. War Powers Act defines it as sending "armed forces" into "hostilities" or where they're "imminent"

Yes, the War Powers Act of 1973 literally takes it upon itself, through the "necessary and proper" clause, which gives it the right to make such clarifications, to define what is Constitutionally meant by "war", and that's what it says: armed forces into hostilities or situations where they're to be expected soon.

It's WAR, ask any of the dead people.

[tekisui]

32. We are at war in Libya.

We have joined one side of a civil war. We are at war with the current Libyan government.

[ProSense]

8. So Ackerman is now

advocating the Constitutionality of the War Powers Act to claim the unconstitutionality of U.S. involvement in the Libya no-fly zone?

In taking the country into a war with Libya, Barack Obama's administration is breaking new ground in its construction of an imperial presidency -- an executive who increasingly acts independently of Congress at home and abroad. Obtaining a U.N. Security Council resolution has legitimated U.S. bombing raids under international law. But the U.N. Charter is not a substitute for the U.S. Constitution, which gives Congress, not the president, the power "to declare war."

After the Vietnam War, Congress passed the War Powers Resolution, which granted the president the power to act unilaterally for 60 days in response to a "national emergency created by attack upon the United States, its territories or possessions, or its armed forces." The law gave the chief executive an additional 30 days to disengage if he failed to gain congressional assent during the interim.

<...>

Many modern presidents have made such claims, and Harry Truman acted upon this assertion in Korea. But it's surprising to find Obama on the verge of ratifying such precedents. He was elected in reaction to the unilateralist assertions of John Yoo and other apologists for George W. Bush-era illegalities. Yet he is now moving onto ground that even Bush did not occupy. After a lot of talk about his inherent powers, Bush did get Congress to authorize his wars in Afghanistan and Iraq. Now, Obama is putting Bush-era talk into action in Libya -- without congressional authorization.

<...>

Ackerman does this by completely writing off the U.N. Charter. A number of Constitutional scholars have claimed that the WPA is unconstitutional. No one has ever claimed that the U.N. Charter is unconstitutional.

Regardless, President Obama acted under the U.N. Charter and fulfilled the War Powers Act requirements: Consulted with Congress, notified Congress and now has 60 days to submit a report.

[PurityOfEssence]

29. This is still completely incorrect, regardless how many times you post it.

You're posting assertions that are mis-labeled and completely incorrect.

Your link called "U.N. Charter" isn't that at all; it's an article about the New Deal and the beginning of the UN, and it has nothing of the Charter that would substantiate your claim.

The UN Charter clearly states that member nations have to get any agreements for the availability of forces ratified back home to satisfy the member nations' constitutionality. (That's my wording, to be clear.)

Your link called "fulfilled the War Powers Act" is a quote from the act that says that the President doesn't need Congress' permission to act under any current treaty or future one unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this chapter. WHICH IS NOT THE CASE WITH THE UN CHARTER. The UN Participation Act of 1945 (which is Congress' law that delineates how we are to interact with the United Nations) states that the President may make a deal to provide forces, but that the deal MUST BE AUTHORIZED BY CONGRESS. It goes on to say that the President may answer an Article 42 call-to-action without authorization by Congress, but only PURSUANT TO AN AGREEMENT THAT CONGRESS HAS ALREADY AUTHORIZED, AND, EVEN IF HE DOES SO, HE MAY NOT HAVE THEM DO ANYTHING NOT CITED IN THAT AUTHORIZATION. (Again, my wording)

If you'll read his language in your link to his letter in within 48 hours, you'll see that he says that this letter is "consistent" with the War Powers Act. It is not in compliance with it, does not obey it or recognize it. He is not in compliance with it, and this is actually NOT consistent with the act, because such notification is to be sent after he has done a permitted act through an Authorization, or having been Attacked.

People should be outraged at his deceptive wording and his flouting of the Constitution.

Repeatedly, I have shown how you are incorrect in threads in which you continue to participate, yet you do not answer any of this proof and continue to cut-and-paste the same erroneous and misleading information.

As for whether scholars dispute the Constitutionality of the War Powers Act, many also don't, and it is the law of the land. It has been passed and no court challenge has been effectively mounted. It is literally the law of the land, and as an interpretation of the Constitutional Power under Article 1, section 8 of the Constitution, it is, in effect, the DEFINITION OF THIS CONSTITUTIONALLY ENUMERATED POWER, AND THUS THE VOICE OF THE CONSTITUTION.

Bummer. Some people think Roe v. Wade is unconstitutional. Some people think that if they don't like a particular law then they don't have to obey it. Some people simply don't think at all, but merely continue to cut-and-paste misleadingly labeled citations that are wholly incorrect and irrelevant.

Not replying to detailed assertions about important matters of WAR shows a disregard for the covenant of decency under which most of us comport ourselves on this board.

[jefferson_dem]

9. Ackerman is still beating the tired, old "Congress has the power to declare war" drum.

Since he is a "constitutional scholar" and everything, I'm sure he's aware that every president since 1973 has initiated military action under the WPA and not once has the Court struck down such action as unconstitutional. This is no different. Then again, perhaps Ackerman is so far out there that he believes every "conflict" except those that have been declared "wars" by Congress were actually illegal.

The sub-title of this polemic should provide enough evidence that Ackerman is engaging some shallow fantasy-based truthiness. "By *unilaterally* going to war against Libya..."

[Vattel]

12. The Court has refused to rule on such questions.

(Political question doctrine.) So it's up to Congress to ensure that its war powers do not continue to be usurped.

[Rosco T.]

10. Oh what a load of bull crap n/m

[Azathoth]

11. Ackerman also claimed that Obama's appointment of Elizabeth Warren was a sign of an "imperial

presidency." He's been pushing this line for a while. Take whatever he says with a grain of salt.

[Clio the Leo]

13. It's a pity that Obama has never studied the Constitution himself....

.... :sarcasm:

[DCBob]

14. Enforcing a no-fly zone is not war.

[Gravel Democrat]

20. If Libya fired off over a hundred missles into Florida there's no way

our psychopathic "leaders" would call it war.

Jesus.

Now for the clorox. This is beyond Alice in wonderland. I can't wait to be an expat. I'm counting down the minutes.



******


http://costofwar.com

[PurityOfEssence]

34. It's much more than that, and besides, introducing "armed forces" into "hostilities" IS WAR

This is not just a "no-fly zone". This is not just "protecting civilians"

The UN Resolution allows pretty much any force the members see fit, including ground forces and full-on attacks on the ground. We're already destroying vehicles that have nothing to do with Anti-Aircraft installations.

What's sickening is that people INSIST on saying it's just some piddly little "no-fly zone", as if we're hall monitors or something, when we're making coordinated attacks against armed forces in support of armed forces engaged in a civil war.

Please respond.

Thanks.

[VoteProgressive]

15. The GDP would HATE Bush for doing this, but Obama can do no wrong! nt

[BklnDem75]

16. And some would beat it over the head of Democrats...

Just like they do with Rwanda for their failure to act on crisis's just like this. Apparently, Obama can do no right. For many, even before he took office.

[Name removed]

19. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[ReturnoftheDjedi]

22. Bush's Wars weren't ever Humanitarian. Sorry if you don't like saving people.

Those of us who do, support Obama's actions.

[VoteProgressive]

24. Sorry if you only like saving people who cause Oil prices to rise! Want me to name.....

other countries who are killing their own? Or can you research on your own?

[vaberella]

18. When did we declare war with Libya? n/t

[tekisui]

33. That is part of the problem. We haven't.

[PurityOfEssence]

35. Even if we don't, by the War Powers Act, introducing "armed forces" into "hostilities" is WAR

By this logic, the American Civil War was not a "war" either.

There was even a very famous conflagration in 1798-9 called "The Undeclared War With France" that is understood by our history and Congress at the time to be a "war" even though its very appellation is "undeclared war".

[polichick]

21. Don't let all those missiles fool you - we're not in a war!

[VoteProgressive]

25. +1000

[amandabeech]

30. Prof. Ackerman, who teaches at Yale Law School and has done so for many years,

is known to be incredibly bright, among an incredibly bright group, and a very original thinker.

He is also liberal, but again, he thinks for himself.

He has been ahead of others before, and he may be again.

I would not dismiss what he thinks cavalierly.