by William Norman Grigg, LewRockwell.com
The United States Constitution,Â as the Obama Regime pretends to understand it, is a most peculiar document, one that is actually enhanced by the criminal actions of public officials who brazenly violate its most explicit provisions. Most people would assume that such actions would tarnish the Constitution. As the administration tells it, however, decades of persistent presidential contempt for the Constitution have conferred an â€œhistorical glossâ€ on the document, just as decades of determined obfuscation of its unambiguous and easily understood war powers provisions have â€œclarifiedâ€ their meaning.
Caroline D. Krass, a minor functionary in the Justice Departmentâ€™s Office of Legal Counsel, was assigned to play the role of the Obama administrationâ€™s John Yoo â€” that is, the sophist responsible for composing a spurious but serviceable legal rationale for the exercise of dictatorial powers by the president.Â The resulting memo â€” dated, appropriately, April 1 â€” claims that Obama needed no congressional authorization of any kind to commit aggressive war against Libya, since in his holy and indisputable judgment the possibility of â€œregional instabilityâ€ and injury to the â€œcredibility and effectiveness of the United Nations Security Councilâ€ posed threats to our national security that demanded a military response. Accordingly, Krass concluded, Obama could initiate war with Libya â€œas Commander in Chief and Chief Executive and pursuant to his foreign affairs powers â€¦ even without prior specific congressional approval.â€™
The actual text of the Constitution, and the well-articulated intent of the Framers to deny the president unilateral powers of this kind, are inconsequential, according to Krass, who cites an earlier OLC opinion claiming that a â€œpattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents of both parties, evidences the existence of broad constitutional power.â€ It does no such thing, of course, any more than the persistence of armed robbery in defiance of laws against theft â€œevidences the existence of a broad right to steal property at gunpointâ€ (which is, of course, the defining activity of the institutionalized affliction called â€œgovernmentâ€).
Krassâ€™s memo does offer a pretty detailed description of the devious dialectic in which presidents have usurped war powers, and congress has abdicated its authority, yielding the present post-constitutional synthesis in which any elected dictator can wage war anywhere for as long as he or she pleases. The only â€œpossible constitutionally-based limitâ€ on the presidentâ€™s supposed authority to wage war, she insists, would involve â€œa planned military engagement that constitutes a `warâ€™ within the meaning of the Declaration of War Clauseâ€¦.â€ This is to say that from the Regimeâ€™s perspective, there is a vague, and not terribly important,Â possibility that the Declaration of War Clause might actually impose a hypothetical limit on presidential war powers. However, the memo goes on to assert that â€œthe historical practice of even intensive military action [such as] â€¦ some two months of bombing in Yugoslavia in 1999 â€” without specific prior congressional approvalâ€ effectively nullifies that constitutional limitation.
The compelling â€œnational interestâ€ claimed in the OLC memo is two-fold: First, preventing a â€œhumanitarian catastropheâ€ that â€œcouldâ€ have ensued in Benghazi (aÂ claim that was as much a cynical fiction as Bill Clintonâ€™s lie that hundreds of thousands of Kosovo Albanians were facing annihilation, or the Bush administrationâ€™s fabrications about Saddamâ€™s WMD); and second, â€œmaintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security.â€ Both of those objectives are best served, we are supposed to believe, by flinging Tomahawk cruise missiles at population centers inÂ a country that posed no threat to us.
Of particular interest in this connection is Krassâ€™s statement that â€œthe United States government has recognized that `[t]he continued existence of the United Nations as an effective international organization is a paramount United States interest.â€™â€ That phrase,Â which was cited by the first Bush administration to justify the UN-â€authorizedâ€ December 1992 invasion of Somalia, originated in a 1950 State Department Bulletin entitledÂ Authority of the President to Repel the Attack in Korea. The term â€œparamount,â€ of course, is a synonym for â€œsupremeâ€; this means that Krass and her predecessors defined preservation of the UN as the supreme foreign policy interest of the United States government.
As was recently pointed out in LRC,Â the United Nations was never intended to be a peace organization. From the beginning, asÂ Simon Tisdall of theGuardian of London observes, the UNâ€™s â€œprimary purpose was as a war-fighting machine.â€ When Congress enacted theÂ United Nations Participation Act in December 1945, it effectively repudiated its constitutional role in declaring war, deferring instead to a new arrangement in which the president can deploy troops anywhere in the world in compliance with our supposed â€œobligationsâ€ to the UN and the international system it administers.
Granted,Â the UN war-makingÂ system hasnâ€™t operated in strict accordance with its charter â€” but this is just another case in which the text of a supposedly binding document has been transcended by the â€œhistorical glossâ€ placed on it by policymakers who recognize no limits on the powers they exercise. Whenever such people find their ambitions constricted by the terms of a constitution or charter, they will simply write themselves an elaborate permission slip â€” festooned with specious citations â€” authorizing them to do whatever they damn well please.
Copyright Â© 2011 William Norman Grigg