LIBYA AND WAR POWERS

The war against Libya may violate the US constitution, but once again the empire moves ahead with the military option.

By Ted Rall
July 07, 2011

Information Clearing House

Much rumbling has emanated from the US Congress on Libya ~ centered around technicalities around the War Powers Act [sic]," writes Pepe Escobar in the Asia Times.

"As the semantic contortions involved in the Libya tragedy have already gone way beyond Newspeak, this means in practice US drones will keep joining NATO fighter jets in bombing civilians in Tripoli."

Which is, of course, the big capital-P Point. The people of Libya, like those of Afghanistan and Iraq and Pakistan and Yemen and so on, are suffering privation and mutilation and death at the hands of NATO, which is nothing more than an American sock puppet.

To the victims, the carnage is what matters. We cannot lose sight of that ~ and most of the world will not. It is only the Americans, as always oblivious about the places they are wrecking and the people they are killing, who can't find Libya on a map, much less worry about it.

Albeit secondarily, the struggle over war powers in Washington matters. It goes to the core of the nature of the American nation-state, the most heavily-armed country on the planet and thus the greatest cause of fear.

War is the riskiest endeavor a nation can undertake. It can lead to catastrophe (Germany in 1945).

A war can end in not-defeat (the USSR in Afghanistan during the 1980s) yet lead to collapse.

It can wreck the economy (beginning with Vietnam, the US in every war).

A war widely viewed as an unjustifiable act of aggression (the US in Iraq) can create new enemies and corrode a nation's moral standing internationally.

Moreover, popular support is essential to victory. Thus, for political leaders there are two principal reasons to make sure their populations support them: first, popular wars inspire sacrifice and recruits; second, if and when there is a reversal of fortune it is easier to ask for sustained effort.

Beyond practical considerations, any act as inherently monumental as sending troops and bombs to attack a foreign power must involve the majority of the citizenry, certainly all elected representatives. Otherwise it cannot claim even the window-dressing of democracy.

Setting aside questions that ought not to be set aside-whether the US-NATO campaign against Gadafi is winnable, benevolent or may have ramifications beyond the conflict zone-the outcome of the internal struggle over whether Obama has the right to unilaterally commit the armed forces of the United States has broad implications for the world.

If Obama prevails, establishing a firm precedent that a president need not consult with the legislature, the US will have undergone a final, undeniable transformation.

Currently, right-wing exceptionalists view America as a nation that, though it makes mistakes, is generally a shining beacon of democracy and hope to a dark world, a true bastion of freedom. 

Leftist critics see such rhetoric as naïve at best, dishonest at worst; they view the US system as generally hegemonic and increasingly oppressive, yet forced to provide sufficient basic civil liberties to its own population to forestall internal revolt.

Should Congress fail to sanction Obama in some significant way ~ impeachment is warranted though extremely unlikely, the bloom would be off the tattered, skanky rose once and for all. A president might be elected but would act like and thus effectively be, a dictator. The tacit consent of the governed, the American people, would mean that the world would have to see the United States as being even more dangerous than it already does.

Ah, irony: the International Criminal Court at The Hague has issued a warrant for the Libyan ruler's arrest for the killing, torture and imprisonment of Libyan citizens.

On the scales of bloody mayhem, however, Gadafi is a mere piker next to another man who has killed many thousands of Libyans (and Afghans and Iraqis, etc.) and controls an international gulag archipelago of secret prisons and torture camps.

When will the ICC send cops after Obama?

As things now stand, both Gadafi and Obama carry out their misdeeds with impunity.

Neither the American nor the Libyan tyrant has a parliament to worry about. NATO airstrikes destroyed the one in Tripoli in early June.

So let's look at the war over the non-war war in Libya.

At the center of the debate over the Libyan war in Washington is the constitutionally-defined role of the US president. Legally, the president of the United States has "not the power to command, but the power to persuade," political scientist Richard Neustadt wrote.

Theodore Roosevelt, the early 20th century leader who spearheaded the transformation of the U.S. into a global empire, agreed. He dubbed the American presidency a "bully pulpit."

(By "bully," he meant "terrific," a meaning that has fallen out of popular usage. He did not mean intimidating or aggressive.) The president is not a dictator ~ not in theory, anyway. He is highly influential, but power resides with other government institutions.

Under this structure, the US Constitution is clear: only the Congress has the right to declare war.

This has only happened five times in American history. The most recent was seven decades ago, after Japan attacked Pearl Harbor in 1941. Franklin Delano Roosevelt, famously declaring the day of the raid "a day that will live in infamy," asked Congress to exercise its constitutional prerogative to authorize a formal state of war.

Yet the US has been one of the most bellicose nations on earth throughout its history. Rarely has a year passed without American military forces invading, occupying, shelling, bombing or otherwise attacking a foreign country.

For my most recent book The Anti-American Manifesto I attempted to compile a comprehensive list of US military actions. They were literally uncountable. Central American states were invaded, colonized, and partitioned so often they'd might as have well have printed their signs in English and used dollars for currency ~ and some did. The list of US military interventions goes on for page after page after page ~ and that's after shrinking the type so small that it's barely readable.

For all the admirable qualities of the American people ~ love of rock 'n' roll, deep-fried food, and hugely impractical cars, and ridiculous movies featuring numerous explosions ~ Americans are not the smartest. They are an easily confused lot.

This is not their fault. The media is filled with repetitive pro-government propaganda, schools whitewash American history, and years of effective Madison Avenue advertising has made it impossible for them to judge what is true and what is BS. Not to mention the fact that signs of independent thinking prompt the issuance of prescriptions for brain-deadening anti-depressant narcotics.

In such a situation, simple facts evaporate. Even members of the professional pundit class routinely cite the president's role as "commander-in-chief of the army and the navy" as enunciated by the constitution as the source of his power to drop napalm on Vietnamese farmers, insert commandos into the Iranian desert and, on two occasions nearly three decades apart, blow up Colonel Gaddafi's children.

In reality, the president is commander-in-chief of nothing.

The wars in Afghanistan, Pakistan, Iraq,

Libya, Yemen and elsewhere

have no basis in US law.

The US Constitution was written in the late 18th century by men who had served as officials in the British colonial government. As it was in England at the time, the term "commander in chief" was widely understood to be completely ceremonial.

Early US presidents, who had been present at the constitutional conventions that created the framework of the new republic, understood and accepted that they had no right to commit soldiers to combat.

The first president to do so, Thomas Jefferson, formally requested authorization from Congress in order to launch punitive raids against the Barbary States of North Africa, including the city-state of Tripoli. As time passed, however, presidents exploited war fever, fading memories and anti-intellectualism to assert expanded executive power. Though never ratified by law, "commander in chief" came to imply something it had never meant originally: the unilateral right to declare war.

They often came to Congress for a rubber-stamp resolution of approval, but this was mere window-dressing. Over time, they didn't even bother. They might informally consult with a few key leaders. Most recently, Barack Obama dispensed with Congress altogether. He began bombing Libya with the stroke of a pen.

"On the question of war power, I believe the Constitution is as clear as it is plain," Joe Biden said on the floor of the U.S. Senate in 1998. "To be sure, the Commander in Chief ensures that the president has the sole power to direct US military forces in combat. But that power ~ except in very few limited circumstances ~ derives totally from Congressional authority.

It is not the power to move from a state of a peace to a state of war. It is a power, once the state of war is in play, to command the forces, but not to change the state. Until that authority is granted, the President has no inherent power to send forces to war ~ except, as I said, in certain very limited circumstances, such as to repel sudden attacks or to protect the safety and security of Americans abroad."

Anyone with a passing familiarity with US law knows that Biden was right. (At the time he was arguing against Bill Clinton's undeclared war against Serbia.) But it didn't matter. In the United States, de facto trumps the law of the land.

The US government is neither above nor beyond the law; it is outside.

It is lawless.

The culmination of the triumph of might-makes-right autocracy over democracy was George W. Bush's "theory of the unitary executive," which asserts that the president is not merely the highest-ranking member of the executive branch of government, but embodies it in his person. Two more branches, and we will have arrived at the Fuhrer Principle.

Even Democratic "liberals" accept this state of affairs. Last year the documentary filmmaker Michael Moore complained:

"It matters not whom we elect. The Pentagon and the military contractors call the shots. The title 'Commander in Chief' is ceremonial, like 'Employee of the Month' at your local Burger King."

True, that title is ceremonial ~ but here Moore is complaining that war making power has been stolen from the president, with whom he believes it ought to reside, by the goons of the military-industrial complex.

One wonders whether Biden, now vice president, still decries what in 1998 he called the prevalent bipartisan "monarchist" view of the power of the president to make war.

Near the end of the Vietnam War Congress passed (over Richard Nixon's veto) the War Powers Resolution, which requires the president to receive approval from Congress within 60 to 90 days of the commencement of "hostilities." Presidents of both parties have disputed the Resolution's constitutionality and/or have simply ignored it. Which is a little strange.

As Daghlia Lithwick wrote in Newsweek in 2008, the WPR has never stopped US presidents from doing what they love most: bombing and shooting and whatnot.

"Congress is always too deferential, too credulous and too timid to check a strong president in wartime, and only ever speaks out after the war has become unpopular," Lithwick wrote. "Congress will always offer up a tiny little authorization to use force, and stand by as that authorization swallows up several countries, many years and thousands of dead soldiers. Our war-powers problems lie not in the failure of checks and balances, but in the fact that Congress is invariably comfortable opposing wars only in hindsight."

But even the possibility of post facto opposition was more than former law professor Barack Obama was willing to countenance. He has taken a novel tack on Libya, stating that he believed the Resolution to be both constitutional and binding but not applicable to the bloodshed being unleashed upon Libya because it does not rise to the level of actual "hostilities".

Military operations against Libya, Obama's lawyers stated, is under NATO control. They also claimed there were no US ground troops. Even if these were valid arguments ~ most experts say they are not ~ they are transparently untrue. NATO is a fig-leaf for the US.

Both soldiers and CIA operatives have been training and arming the Benghazi-based rebels for months.

Will Congress move beyond toothless resolutions?

Will it censure Obama or cut off funding for his war against Libya?

I guess not.

Americans politicians have neither the will nor the maneuvering space to save the United States from descending, once and for all, into total despotism. Where will this superpower, which spends 54 percent of discretionary federal budget on the Pentagon and debt service on old wars, strike next?

War will come again: meaner, faster and even more thoughtlessly.

Ted Rall is an American political cartoonist, columnist and author. His most recent book is The Anti-American Manifesto. His website is rall.com.