Articles of Impeachment- Part 4: Illegal Libyan Intervention

One area where there is some confusion, from a constitutional standpoint, is the conflict between the power of Congress to declare war and the president’s powers as Commander-in-Chief.  This tension was put to the test with Obama’s intervention in the conflict in Libya and possible violation of the War Powers Resolution.  To understand the possible violations, a timeline of events is necessary.

On February 14, 2011- three days after the ouster of Mubarek in Egypt- calls went out in Libya for the overthrow of Moammar Gadhafi.  By the 22nd, demonstrations had grown and the government’s response grew more violent to the point that the UN Security Council issued a denouncement of the use of force by the government.  On the 25th, Obama signed an order freezing the assets of Gadhafi.

A series of UN actions ensued leading to a March 17th resolution which imposed a no-fly zone over Libya with orders to take “all necessary measures to protect civilians.”  Two days later, Operation Odyssey Dawn was started in an effort to enforce the no-fly zone.  Over 120 US Tomahawk Cruise missiles struck air defense installations inside Libya.  On March 24, NATO took over the no-fly zone enforcement and began flying sorties over Libya attacking government forces.  On June 1st, NATO announced that it was extending its mission in Libya for another 90 days.  During this time, some countries started to complain that NATO is using the Security Council resolution to go beyond its stated purpose and the goal transformed into regime change, not protection of civilians through enforcement of a no-fly zone.

As the 60-day deadline approached under the War Powers Resolution, the Obama administration released a letter to Congress claiming authority to act in Libya.  In response to a letter from House Speaker John Boehner, Obama defended his actions.  His claim was that by April 4th, command of US operations in Libya was under NATO control and consisted of (1) “non-kinetic” support of NATO operations, (2) use of aircraft to support the no-fly zone and (3) use of drones to strike defined military targets.

Prior to UN sanctions and NATO action, the CIA had operated in Libya supplying arms and intelligence to Libyan rebels.  From the start, the purported excuse for military action is suspect.  Clearly the goal was regime change from the start.  One seems to recall similar charges made against another recent President except Bush had Congressional authorization for the use of force.

What is appalling is the use of this Orwellian phrase “non-kinetic military support.”  Imagine if another country working under the auspices of the UN launched bombing raids on the United States in an attempt to force the president from office.  Would any American doubt that they were “at war” with us?  Would an assertion of “non-kinetic military support” make any difference?

Obama’s assertion was that the action taken was NOT any which would fall under the purview of the War Powers Resolution.  The reason was that it was authorized under the UN Security Council Resolution and the NATO treaty.  Further, the hostilities do not involve “sustained fighting,” the “presence of US ground forces,” “US casualties or the a serious threat of US casualties.”

The War Powers Resolution says nothing about the presence of ground forces or sustained fighting to be prerequisites for the law to be in effect.  In fact, the pertinent part clearly states:

The constitutional powers of the President as Commander-in-Chief to introduce United States armed forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack on the United States…

Since there was no declaration of war and there was no statutory authorization and there was no attack upon the United States or any citizen abroad, it is clear that the action was illegal.

Once notification is made, the president is obligated to cease military action after 60 days unless authorized by Congress to do otherwise.  Again, since military force was first used on March 17th and continued into June when Obama wrote a 38-page letter to Congress, he is again in violation of the law.

Obama claims he has the authority to commit the armed forces under the NATO treaty and UN Security Council Resolution as enforcing a treaty.  However, again the War Powers Resolution speaks to this issue.  It states:

Authority to introduce United States Armed Forces into hostilities…shall not be inferred from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces…

Therefore, whether he was operating under NATO or the UN, it made little difference to his argument.  By continuing operations after the 60-day deadline Obama was in violation of the War Powers Resolution.

His second excuse is that because the United States was involved mainly in support operations, he had a free pass to violate the law.  But again, the War Powers Resolution states:

…the term “introduction of United States Armed Forces” includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular forces of any foreign country or government when such military forces are engaged in hostilities…

By their own admission, the United States was providing close to 70% of the intelligence to this operation.  Over 2,500 US air sorties were flown over Libya in support of the rebel fighters under the excuse of protecting civilians.  Previous to the uprising, the US was providing logistical support and arms to rebels in Libya.  It makes little difference whether ground forces are committed or whether a single shot is fired at an American fighter jet.  Clearly, Obama’s actions again are in violation of the Resolution’s clear wording for Congressional notification and authorization.

The triggering mechanism for notification and subsequent congressional authorization is the mere presence of the US armed forces in another country’s airspace or in support of other countries engaged in hostilities.  And we should just drop the pretense about “hostilities.”  As soon as a bomb is dropped on a military target or air defense outpost, that constitutes “hostilities.”

Obama’s assertions for ignoring the War Powers Resolution are irrelevant and without merit.  It makes little difference if drone strikes are “limited.”  It makes no difference if we are acting in support of the armed forces of another country.  It makes no difference if this is under the auspices of the UN or NATO.  The reason proffered- to avoid a humanitarian disaster- makes no difference.  Furthermore, it makes no difference if one is engaged in active hostilities with a foreign country or if ground forces are used.  In effect, Obama was asserting that this was a special situation where things were handed over to NATO and therefore everything is kosher.  However, even before that handover, Obama was in violation of the clear wording of the law.

To add another nail to the coffin of tenuous legal justification for actions, Obama realized that Congress would most likely not authorize use of military force in Libya.  That is why he requested no funding for this operation knowing that Congress had the constitutional power of the purse.  When Obama answered Boehner’s letter, they acknowledged that the estimated cost of the operation would be $1.1 billion and that they already spent over $700 million- $300 million in munitions alone.

The question is without specific congressional appropriations, where did this $1.1 billion come from?  Article I, Section 9 states that “no money can be withdrawn from the Treasury except by proper appropriations by law and that a regular statement of account and receipts must be published.”  To date, that question has not been answered.  It is not as if there is some rainy day fund sitting around waiting to be used at the discretion of the president in the eventuality of using our armed forces somewhere in the world.  During the Iraq War and throughout, the Bush administration repeatedly went to Congress for supplemental funds.  Granted, although eventually being appropriated, there was great political wrangling.  Obviously, Obama recognized the tenuous grounds on which he was operating, learned from the foibles of the Bush administration and opted for the sleazy and illegal way out of that conundrum.

We can debate the legality of the War Powers Resolution, but since its passage, Barack Obama is the only president who acknowledges that as president, he is bound by it.  Exigent circumstances can be used as a reason to get around it, but those circumstances clearly did not exist here.  And the ending of the Obama justification letter is equally tenuous.  In effect, it claims that preventing a humanitarian crisis by using American military assets has, in effect, become a vital national interest.  The potential abuse of that justification is chilling.  If left unchecked, what would stop a future president from intervening in any other country where a humanitarian crisis existed?  What exactly would constitute a “humanitarian crisis?”  Why intervene in Libya, but not the Sudan?

Is this an impeachable offense?  My considered opinion is that given the audacious justification for his actions in Libya, Obama clearly acted outside the scope of the War Powers Resolution both before and after the 60-day reporting period.  Furthermore, the justifications offered fall outside the realm of commonsense and are an insult to not only Congress, but the American people.  Therefore, this is an impeachable offense.