This morning, as I dropped off my youngest son at school, I heard Hal Sparks, a guest replacement for radio show host Stephanie Miller, repeat an assertion that I have heard coming from several Democratic defenders of Barack Obama’s abrupt entry of the United States into the civil war in Libya. Hal Sparks dismissed objections to the beginning of this war without approval by Congress, as the Constitution requires, by stating that, according to U.S. law, President Obama has 60 days to fight a war before he has to get congressional approval.
Hal Sparks made the statement so confidently that it sounded like a clear fact, but I noticed that Sparks could not cite the specific legislation that provides the President the 60-day war-without-Congress window he referred to. So, I wondered, and I checked.
Does the President have the legal ability to wage war for 60 days without any congressional approval?
The answer: A small yes, and a very big no.
The legislation is very clear on this matter, and the answer is clear as well. The President of the United States does have power to bring the United States into the state of war, but only under an extremely limited range of circumstances.
Those circumstances: 1) If Congress has declared war; 2) If Congress has passed legislation of another sort authorizing a particular war; 3) If an attack on the territory or armed forces of the United States has created a national emergency.
The War Powers Resolution clearly states the circumstances in which the President of the United States can enter the USA into war. Section 2, subsection c of the legislation declares, “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 upon the United States, its territories or possessions, or its armed forces.”
So, the larger, and ultimate answer is that no, President Obama does not have 60 days to wage war in Libya without congressional authorization. There is no declaration of war. There is no other form of statutory authorization. The Libyan government of Moammar Qaddafi did not attack the territory, the possessions or the armed forces of the United States. As many terrible things Qaddafi has done, when it comes to the United States, he has only defended himself from attack.
Where has Hal Sparks come up with this idea that President Obama has the authority to wage war for 60 days without congressional approval, then? Sparks has obtained this idea, second hand, from a sloppy reading of the War Powers Resolution.
Section 5, subsection b of the War Powers Resolution does refer to a sixty day period of war powers. It reads: “Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”
If a person reads this subsection alone, it appears that the War Powers Resolution authorizes the President of the USA to go to war for 60 days without getting congressional approval. However, this subsection of the War Powers Resolution does not operate on its own, but only within the larger context of the legislation.
Section 5, subsection b does not give permission to the President to go to war without congressional authority. Instead, it actually further limits the power of the President to wage war. It states that, even if the USA has been attacked, as required by Section 2, subsection c, the President cannot continue waging war for longer than 60 days unless Congress approves (or unless devastation of the USA is so complete that Congress cannot meet).
In no way does the War Powers Resolution allow the sort of war that Barack Obama entered into at the beginning of last week. Obama gave the American people less than 24 hours notice, when Congress had already entered a 10-day recess. Obama purposefully waited to launch war until a time when the American people would have no opportunity to advise their Representatives on Capitol Hill. There was no debate. There were no congressional hearings on the Obama plan, and no open debate. There was no declaration of war, and no other legislation authorizing war to take place.
The American involvement in the civil war in Libya is plainly unconstitutional and illegal.
I am not alone in my opinion. Bruce Ackerman, professor of law and political science at Yale University, wrote this morning of the supposed 60-day exemption from the need for congressional authority to wage 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 law is clear. Hal Sparks and his allies in apology for war are wrong. The entry of the USA into the Libyan civil war was conducted illegally.
On Tuesday, when Congress reconvenes, we will see if anyone in the Legislative Branch has the guts to lodge more than a verbal protest against this usurpation of power by the Executive Branch – an expansion of what Ackerman refers to as the “Imperial Presidency”.
You keep forgetting – Bush jr. threw out the Constitutional playbook and began Cowboy diplomacy whereby, by cracky, he can do any damn thang he wants, cause he’s the praise-e-dent! When Obama and Bush met before the beginning of what’s turned out to be Bush’s third term, i’m sure Bush told Obama to just keep doing what he’s done – take charge, kick some ass, assert your authoritah! The presidential club has to keep up as much power as it can grab (it’s in their nature for humans to do that).
Anyone who thinks this is a democracy is deluding themselves. Power and influence revolve around MONEY, the whole voting process has been gamed so that it’s just an illusion of involvement by the masses (who, as we’ve seen, only count to backstop the rich and powerful when they make bad bets and lose trillions of dollars – then it’s “austerity” for the masses, but that’s NOT SOCIALISM), the legislative and executive branches have likewise been captured by the monied class through lobbyists and the judicial system is a farce, where there are two sets of laws – one for the rich (the slap on the wrist) and one for everyone else (prison,torture and rendition).
How about FISA:
http://emptywheel.firedoglake.com/2011/03/25/in-2004-the-white-house-considered-fisas-exclusivity-provision-to-be-top-secret/
Okay, last one, then i’ll get off the anti-Obama soap box. According to Chris Hedges, the “major accomplishment of the Obama Administration is to codify the destruction of domestic and international law.”
http://ofgoatsandmen.blogspot.com/
You’re wrong, as usual.
You have completely ignored Section Four of the War Powers Resolution, which specifically addresses situations in which, in the absence of a declaration of war, when United States Armed Forces are introduced “into hostilities” and into “the territory, airspace or waters of a foreign nation,” the President must report in writing within 48 hours about his intent to the Speaker of the House, and the President Pro Tem of the Senate, and “periodically” thereafter.
All of this was done by President Obama PRIOR to the introduction of our Forces into hostilities in Libya.
The 60-day period relates specifically to the time limit of the President to act under the authority granted him under Section Four.
Next time, read and think before you write.
All Obama had to do was get on a jet, land on a carrier, and declare “mission accomplished”. It would have taken years for everyone to figure out that his deal was just as much bullshit as Junior Bush’s was.
We are in Libya for oil which is an american interest and that is it.
I think The us big as it is now i surposed belived should be emback on developmental issues rather than WAR in africa. It will be of shame if the US support rebels as they are called world wide. please us do not permit an president coming to power on that soil to be in the style of leading WAR on other CONTENENT, God bless America, i love America.
It is now past the 60 day mark and we are still there. Why?
Actually, the better question would be why are we there at all? Financially we can’t afford it. Plus, we don’t know who the rebels are that we are supporting. Did we not learn about funding these rebel groups when we gave Al Queda support in the 90s? Our best bet is to just stay out of the situation.
I agree. Even if we accept the war as planned, it isn’t going according to plan. In the meanwhile, it’s eroding the constitutional separation of powers that began under George W. Bush. Obama is too much like Bush for my comfort, and I don’t accept Obama rushing into war any more than I supported Bush rushing into war.