Obama's Unconstitutional War

By unilaterally going to war against Libya, Obama is bringing America closer to the imperial presidency than Bush ever did.

In taking the country into a war with Libya, Barack Obama's administration is breaking new ground in its construction of an imperial presidency -- an executive who increasingly acts independently of Congress at home and abroad. Obtaining a U.N. Security Council resolution has legitimated U.S. bombing raids under international law. But the U.N. Charter is not a substitute for the U.S. Constitution, which gives Congress, not the president, the power "to declare 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 president failed to mention this fundamental point in giving Congress notice of his decision on Monday, in compliance with another provision of the resolution. Without an armed "attack," there is no compelling reason for the president to cut Congress out of a crucial decision on war and peace.

This is particularly striking since, in the Libyan case, the president had plenty of time to get congressional support. A broad coalition -- from Senator John McCain to Senator John Kerry -- could have been mobilized on behalf of a bipartisan resolution as the administration engaged in the necessary international diplomacy. But apparently Obama thought it more important to lobby the Arab League than the U.S. Congress.

In cutting out Congress, Obama has overstepped even the dubious precedent set when President Bill Clinton bombed Kosovo in 1999. Then, the Justice Department's Office of Legal Counsel asserted that Congress had given its consent by appropriating funds for the Kosovo campaign. It was a big stretch, given the actual facts -- but Obama can't even take advantage of this same desperate expedient, since Congress has appropriated no funds for the Libyan war. The president is simply using money appropriated to the Pentagon for general purposes to conduct the current air campaign.

The War Powers Resolution doesn't authorize a single day of Libyan bombing. But it does provide an escape hatch, stating that it is not "intended to alter the constitutional authority of the Congress or of the President." So it's open for Obama to assert that his power as commander in chief allows him to wage war without Congress, despite the Constitution's insistence to the contrary.

Many modern presidents have made such claims, and Harry Truman acted upon this assertion in Korea. But it's surprising to find Obama on the verge of ratifying such precedents. He was elected in reaction to the unilateralist assertions of John Yoo and other apologists for George W. Bush-era illegalities. Yet he is now moving onto ground that even Bush did not occupy. After a lot of talk about his inherent powers, Bush did get Congress to authorize his wars in Afghanistan and Iraq. Now, Obama is putting Bush-era talk into action in Libya -- without congressional authorization.

The president's insistence that his Libyan campaign is limited in its purposes and duration is no excuse. These are precisely the issues that he should have defined in collaboration with Congress. Now that he claims inherent power, why can't he redefine U.S. objectives on his own? No less important, what is to stop some future president from using Obama's precedent to justify even more aggressively unilateral actions?

The buck stops on Capitol Hill. As always, presidential unilateralism puts Congress in a tough position. It cannot afford to cut off funds immediately and put the lives of Americans, and U.S. allies, in danger. But it can pass a bill denying future funding after three months. This would prevent the president from expanding the mission unless he can gain express congressional consent.

The U.S. Congress should also take more fundamental steps to bring the imperial presidency under control. In the aftermath of Watergate, Congress went beyond the War Powers Resolution to enact a series of framework statutes that tried to impose the rule of law on a runaway presidency. Many of these statutes have failed to work as planned, but they were the product of a serious investigation led by Senator Frank Church and Representative Otis Pike during the 1970s. A similar inquest is imperative today. In many respects, Bush's war on terrorism was a more sweeping breach of constitutional norms than anything Richard Nixon attempted in Watergate. Yet Congress has been silent, trusting Obama to clean house on his own.

The president has shown, by his actions, that this trust is not justified. If Congress fails to respond, we have moved one large step further down the path to a truly imperial presidency.



No Spring in Palestine

Despite the uptick in violence, it's going to require something truly nasty or spectacular to put the Israeli-Palestinian issue on the front burner again.

Just when you thought the Israeli-Palestinian conflict was in the deep freezer, things are getting hot again. Hamas and Israel are back at each others' throats; and for the first time in four years, there's been a terror attack in Jerusalem, killing one Israeli. The bombing capped a week of Israeli-Palestinian confrontation, which resulted in a number of civilian deaths in Gaza. If I didn't know any better, I'd think that Israelis and Palestinians watching the historic changes in the Arab World just can't stand not to be the center of attention.

But I do know better. And this time around, precisely because of those transformative changes, it's going to take something truly big -- either nasty or spectacular -- to put the Palestinian issue back on center stage. Because right now, despite the loss of life on both sides, it's still old hat. And here's why:

If the onset of the Arab spring (Egypt, Tunisia) and Arab winter (Bahrain, Libya, Yemen) suggest anything, it is that priorities have shifted away from external reference points -- Israel and the United States -- to the more authentic forces of internal processes of political change. I say this fully aware of the Libyan exception, where the United States and the international community is very much in the picture.

Something truly profound is playing out in Arab capitals and countrysides: a process of ownership, the regaining of control over the Arab story (and future) by Arabs themselves. And this process of self-determination will continue to play out for years to come, affecting those Arab polities which to date have largely escaped significant change. Colonialists and Zionists are unlikely to figure as prominently in the Arab story -- either as an excuse or justification.

The debate over the centrality of the Palestinian issue to regional stability and to U.S. interests has been argued in hot and heavy fashion for years. Proponents of centrality have argued that there's no issue more resonant or more emotional in Arab politics; none more threatening to the viability of Israel or morally unfair to Palestinians; and certainly none more likely to radicalize Arabs and Muslims around the world.

Others have argued the opposite: that the sources of instability are deeper and broader, including turmoil within Islam, the Iranian challenge, a democracy deficit, and authoritarian regimes and extractive leaders who have bilked their public for years and kept them bottled up in a kind of Nasser time warp. Instead, they argue, the Palestinian issue has been used to distract and divert attention from meaningful reforms -- a cruel deceit to keep autocrats in power.

The fact is that there is truth to both narratives; but, both have now been overtaken by another reality -- an Arab spring and winter that have captured the attention and imagination of the peoples of this region and the world. These profound changes have created a new set of priorities and agenda that has set the Palestinian issue in a new light, reducing to a much tinier scale the grim, rather hopeless shepherd's war we call the Israeli-Palestinian conflict -- whether it's waged with rockets or knives. The empty promises of the peace process have done the rest.

To put this in perspective, look at the three-week-long Israeli-Hamas war in 2008-2009. It was short, cruel, and brutal; and it changed absolutely nothing. By contrast, the Arab spring/winter has been profound and transformative; it has changed much, with much more yet to come. Arabs and Muslims will certainly continue to be compelled by the power of the Palestinian issue, but the days when manipulative leaders can use Palestine as a rallying cry to mask their own abusive behavior may be numbered. For those countries that have peace treaties with Israel (Egypt, Jordan) Arab publics will finally have to own those relationships -- rather than leave them in the autocrats hand -- and decide for themselves whether or not they make sense.

Do Arab springs reflect the end or the erosion of the resonance of the Palestinian issue in Arab politics? Hardly. In emerging democratic and semi-democratic polities, new voices will abound and demand to be heard. Secularists and Islamists -- not to mention extremists of all stripes -- will keep Palestine alive as a rallying cry. But this time, it's going to require something truly transformative to put it back on the front burner. Across the Arab world, the focus is now on elections, constitutions, and the revolutions yet to come. To paraphrase the British rock group The Who, the Arab public won't get fooled again by some chimerical quest to redeem Palestine.

The same old, same old isn't good enough anymore. Conventional diplomacy or conflict won't be enough to re-energize the Arab world -- or the Israelis and Palestinians, for that matter.

You'd need a confrontation so volatile that it forces Israelis and Palestinians to reassess, or a peacemaking initiative so grand that it shakes up calculations in a dramatic way. Neither is likely. The other potential? A Palestinian spring that harnesses people power as effectively and as peacefully as those that have occurred in the Arab world. Always an option, but I wouldn't bet on it.

Instead, I'd put my money on an Arab spring, as messy as it is, which is proving to be one of the most extraordinary political developments of this century -- not on a tired, stalemated conflict that lacks visionary leadership, smart political tacticians, and new generational spirit. That's an old movie, a rerun actually; and nobody -- not even the Arabs -- are watching.

Uriel Sinai/Getty images