Are We At War?

Several House members — including America’s nonviolent Tom Zarek, Dennis Kucinich — will sue President Obama, to enjoin the ongoing fighting in Libya.

I hope I don’t have to tell you that this is going nowhere. The form of the law almost doesn’t matter, because the Court will simply punt based on the political question doctrine, or something similar. (They’ve done it before, when the ACLU attempted to enjoin the bombing of Cambodia.) And, if you think a federal court is actually going to stop a war, you’re crazy. They have, but they’ve always been reversed.

To the extent the law does matter, the War Powers Act necessarily poses a conflict between the Congress’ ability to “declare war,” Art. I, § 8, and the President’s commander-in-chief powers. But Congress’ war power is not implicated in this case, because what’s happening in Libya is not a “war” by any stretch of the imagination. Whether at the Founding or today, by “war” we have always meant a declared action, not an expenditure of military resources that, by virtue of the advance of technology, does not even implicate American lives. As the White House put it, “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.”

No-one has ever suggested that the President must seek Congressional approval to engage the American military, but not American lives. The WPA’s legislative history even speaks in terms of boots-on-the-ground — not resources, generally. Per H. Rept. 93-287, the reporting and ratification requirement applies “where there is reasonable expectation that American military personnel will be subject to hostile fire.”

Executive restraint is clearly a cause-of-the-moment for the right; it’s not something they actually care about, or actually exercise, when given the chance. Unsurprising, then, that they’re wrong here too.


  1. The VP seems to think there’s a legal issue here:

  2. I think the lawsuit is meant to be largely symbolic but it IS a good move. This action in Libya is crap and it’s amazing how easy we got involved. It reminds me of the Clinton years when he would commit us militarily to all sorts of enterprises because air strikes are nearly zero risk for our high-tech military. Also similar to the Predator strikes that the big O has been fond of.

    1. Just to remind you (three months is a long time after all), you got involved partly to prevent Benghazi being turned into a pile of smouldering rubble, but also partly because we, your dear European allies, think this “crappy action” is actually pretty important. That’s what allies are supposed to do, isn’t it? Help out with stuff the others think is important?

      1. The problem with getting involved on behalf of our European allies is that they have a tendency to disappear after the initial phase of operations and leave us with the heavy lifting. Also, when the specific goal is regime change, someone gets stuck with the responsibility of administrating the country. The US doesn’t need that burden.

        1. I think that’s a pretty ironic comment considering we were part of your crappy Iraq War for on average five very long years, at a considerable human and economic cost (not to mention Afghanistan – still there), yet here we are precisely three months into our barely-a-war and you’re already going “Oh man, why’re we doing this again? Do we have to?”

          Besides, there won’t be a need for “administrating” anything, because there is already an organised and viable opposition to carry out the transition. It’s a totally different scenario from Iraq.

          1. Do you really want o compare casualty numbers for Iraq? Americans have had around 5,000 casulaties while ALL of our allies combined have lost less than 500. So gee, thanks.

            And exactly why does Libya mater so much to Europe?

            The point is that US involvement comes with repurcussions that Europe never feels. Politically, economically, etc. You all are far more insulated from your actions than we are.

            1. I do not want to compare casualty numbers, because that would be in remarkably bad taste, but I do reject the idea that we’re not doing any heavy lifting. We have been in Iraq for years, we’re still in Afghanistan (particularly in Helmand province where much of the fighting is taking place), and in both cases for something that was only marginally relevant to our interests. So you’re very welcome.

              Libya (and all of North Africa) is important to Europe for several reasons – it’s just across the Mediterranean, which means significant streams of refugees coming into particularly Italy; a defeat of the Libyan uprising would be a setback for the whole Arab Spring, which we want to promote; plus we want to avoid repeating the mistakes of Bosnia and Kosovo, where we acted much too little and too late, with horrible consequences.

              I’m not quite sure what particular “repercussions” you’re talking about, especially since most of the actual combat is being done by the French, British and other non-US forces at the moment.

    2. True. Also, I think an unwillingness to inovlve oneself in actions where you *can* make a difference is incompatible with the right’s obsession with the buzzphrase “American excpetionalism.”

      1. Ames – so ‘make a difference’ ? What’s Obama’s plan for the new regime if Ghaddafi is overthrown? Who do we deal with? And what if they follow the same path as a lot of other violent coups and end up being worse than the dictator they replaced? Will you still contend we made a difference? Have we made a difference in Afghanistan, which I would contend is probably just as bad off as when we got there – or maybe worse?

  3. Legal and political gurus, help me out here: Why does Libya warrant a lawsuit but the invasion of Iraq/Afghanistan didn’t?

    1. (Hi Laura!) So the deal is, both the Iraq and Afghanistan wars were carried out pursuant to a valid Authorization for the Use of Military Force (AUMF), which we’re missing here.

      It’d be my position that the AUMFs in the Iraq War, at least, was procured by fraud. Sadly that’s not actionable at law… but I’ve always said that if Bush had been selling securities, and not a war, he’d be in jail now for sure.

      1. Given the lack of prosecutions for both the Great Recession, and the Big Lie (and its cousin the Big Torture), I doubt he would be. Don’t forget, we can’t EVER look back.

      2. Thanks! As soon as I read your response, I thought “Right. I have read that before.” I can only keep so many balls in the air, so I really appreciate the summary.

      3. Psh, no worries! And glad I can be useful :)

      4. There’s precedent for that, though: The Gulf of Tonkin resolution was procured by fraud, and nobody prosecuted LBJ for it.

  4. Here’s what I don’t get: they’re members of Congress. If they think the President’s exceeding his authority, isn’t the appropriate action to try to impeach and remove him, not take him to court?

    1. Sure Steve, but lately they only want to impeach fro consensual sexual conduct outside “traditional” marriage.

      1. Phillip I’m calling bullshit on that one. That wasn’t what the impeachment read at all.

  5. Ames – I have to disagree with you here. Any time you bomb somebody, you are at war with them. So, regardless of the merits of intervention, we’re at war with Libya, and Obama needs to get some kind of Congressional authorization.

    1. I have to agree. If some fictional country, maybe called Korth Norea or something, launched a large missile at us, that wouldn’t be an act of war. If, for some bizarre reason, Canada launched unmanned drones to drop bombs on the Pentagon, that wouldn’t be an act of war?

      In the middle of Shock and Awe were we not at war?

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