U.S. Rule of Law Tested by Strikes Against Libya

By Andrew Kreig / Project Director

Andrew KreigMilitary action by the United States and its NATO allies to overthrow the government of Libya represents a dramatic new test of our nation’s commitment to rule of law, as even some members of the normally docile Congress are beginning to recognize. House GOP leaders this week thwarted a bipartisan effort to force a vote on United States participation. The NATO military strikes were never authorized by Congress, as required by the 1973 designed to ensure some semblance of the constitutional requirement.

We launched the Justice Integrity Project primarily to address gross due process violations becoming apparent in the court system, most notably in criminal cases being bought on a selective basis to railroad political targets of the White House to prison. Such practices in civil cases clearly require concern, as well. But the nation’s founders knew that war-making is the ultimate power of government. Therefore, they put strong protections in the constitution for checks-and-balances between Congress and the president in exercising this grave responsibility. If authorities in effect ignore those parts of the constitution why should any other part of our fundamental law and procedure remain safe?

Excerpted below, with links for further reading, are links on these vital issues from diverse commentators.

The Washington Post news article below comes from a publication in the forefront of pro-war conventional wisdom on these matters. The Post tends to be extremely hawkish in calling in its opinion columns for more U.S. military actions in the Mideast, and publishing news articles that, for the most part, buttress the pro-war opinions of the paper's top leaders. They placed the excerpted article on an inside page. The Post quoted Rep. Dan Burton, a conservative Republican from Indiana, as predicting enough House votes to pass a bill he co-sponsors with progressive Rep. Dennis Kucinch, (D-OH) demanding that Obama withdraw forces within 15 days.   

Our four other excerpts are from alternative sources. One is from Dr. Paul Craig Roberts, a prolific author, former assistant treasury secretary during the Reagan administration and former associate editor of the Wall Street Journal’s overwhelmingly conservative opinion pages. Roberts continues his many recent critiques on what he argues as unconstitutional and otherwise excessive presidential power with his column about our Libya adventure, entitled, “Hail Caesar.” The other excerpt is from David Swanson, a prolific journalist and author long associated with progressive politics. He shows how war-makers always claim to be operating legally, even when a plain reading of the laws shows they are violating them. His conclusion is that the financial incentives to create war are powerful, unless the public holds officials accountable for their oaths to uphold the constitution.

Progressive constitutional commentator Glenn Greenwald notes the irony of the Democratic president relying on Republican House leaders to prevent a vote on the war that some conservaties are seeking. Finally, Scott Draughton, my co-host on the Washington Update and a vigorous grass-roots Republican activist, delivered on today's show a strong call for congressional approval to comply with legal requirements. The show is available now by archive.

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Below are significant articles on legal reform and related political, security and media factors. The articles, including a strong representation from independent blogs and other media, contain a sample of news. See the full article by cvisting the home page, and visiting News Reports.

June 2

OpEd News, McCain Dethrones the Rule of Law, Bruce Fein, June 2, 2011. Sneering at the Constitution and the War Powers Resolution, Senator John McCain (R. Ariz.) bugled last week, "No president has ever recognized the constitutionality of the War Powers Act, and neither do I. So I don't feel bound by any [60 day] deadline" to obtain congressional authorization to continue hostilities against Libya ordained by the Act. The 2008 Republican presidential candidate effused over unlimited presidential war-making, insinuating that the downfall of the Republic would come from fighting too few wars, not too many. On McCain's gospel hangs an alarming tale. The rule of law has been dethroned and the president has been endowed with absolute power as the American Empire has eclipsed the American Republic.

Washington Post, In the House, a challenge on Libya, David A. Fahrenthold, June 2, 2011. On Wednesday, 74 days after U.S. forces joined the military operation in Libya, President Obama seemed to run out of goodwill on Capitol Hill. A group of both liberals and conservatives — defying the leaders of both parties — threw their support behind a bill to pull the U.S. military out of the Libya operation. That prospect led GOP leaders to shelve the bill before it came to a vote.

Paul Craig Roberts
OpEd News, Hail Caesar, Paul Craig Roberts, left, June 2, 2011. If the President can declare on his own authority, without statutory basis and in defiance of the US Constitution, that he can assassinate US citizens who he considers to be a threat to national security, he certainly can declare that default is a threat to national security and that it is within his powers as commander-in-chief to ignore the debt ceiling.

War is a Crime,
Is That Even Legal? David Swanson, June 2, 2011. Take the example of U.S. warmaking in Libya.  Is that legal? The U.S. Constitution says Congress must decide where and when to make war.  Congress has not declared a war since 1941. Is the law what the Constitution says, how the Constitution was interpreted for the first two-thirds of our national history, what presidents have gotten away with in recent decades, or what a president can get away with today?

Salon / Unclaimed Territory, The war in Libya growing more illegal by the day, Glenn Greenwald, June 2, 2011. To the extent that the War Powers Resolution (WPR) authorized President Obama to fight a war in Libya for 60 days without Congressional approval -- and, for reasons I described here, it did not -- that 60-day period expired 12 days ago.  Since that date, the war has been unquestionably illegal even under the original justifications of Obama defenders, though I realize that objecting to "illegal wars" -- or wars generally -- is so very 2005.  After making clear that they intended to contrive "some plausible theory" to justify this illegal war, the White House finally settled on the claim that the war in Libya -- despite featuring substantial U.S. military action with the goal of destroying a foreign army and removing that nation's leader -- is too small and limited to be a real "war" under the Constitution and the WPR.  Waging a war for 74 days without Congressional approval is illegal enough.  Doing so when there is a growing bipartisan movement in Congress to compel an end to the war -- rather than approve it -- is even worse.  The Emperor has decreed that we will fight this war, and thus we will -- that seems to be the prevailing mindset.