by William Norman Grigg,

The United States Constitution, 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 “historical gloss” on the document, just as decades of determined obfuscation of its unambiguous and easily understood war powers provisions have “clarified” their meaning.

Caroline D. Krass, a minor functionary in the Justice Department’s Office of Legal Counsel, was assigned to play the role of the Obama administration’s John Yoo — that is, the sophist responsible for composing a spurious but serviceable legal rationale for the exercise of dictatorial powers by the president. The resulting memo — dated, appropriately, April 1 — 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 “regional instability” and injury to the “credibility and effectiveness of the United Nations Security Council” posed threats to our national security that demanded a military response. Accordingly, Krass concluded, Obama could initiate war with Libya “as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers … even without prior specific congressional approval.’

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 “pattern 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.” It does no such thing, of course, any more than the persistence of armed robbery in defiance of laws against theft “evidences the existence of a broad right to steal property at gunpoint” (which is, of course, the defining activity of the institutionalized affliction called “government”).

Krass’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 “possible constitutionally-based limit” on the president’s supposed authority to wage war, she insists, would involve “a planned military engagement that constitutes a `war’ within the meaning of the Declaration of War Clause….” This is to say that from the Regime’s perspective, there is a vague, and not terribly important, 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 “the historical practice of even intensive military action [such as] … some two months of bombing in Yugoslavia in 1999 — without specific prior congressional approval” effectively nullifies that constitutional limitation.

The compelling “national interest” claimed in the OLC memo is two-fold: First, preventing a “humanitarian catastrophe” that “could” have ensued in Benghazi (a claim that was as much a cynical fiction as Bill Clinton’s lie that hundreds of thousands of Kosovo Albanians were facing annihilation, or the Bush administration’s fabrications about Saddam’s WMD); and second, “maintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security.” Both of those objectives are best served, we are supposed to believe, by flinging Tomahawk cruise missiles at population centers in  a country that posed no threat to us.

Of particular interest in this connection is Krass’s statement that “the 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.’” That phrase, which was cited by the first Bush administration to justify the UN-”authorized” December 1992 invasion of Somalia, originated in a 1950 State Department Bulletin entitled Authority of the President to Repel the Attack in Korea. The term “paramount,” of course, is a synonym for “supreme”; 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,  the United Nations was never intended to be a peace organization. From the beginning, as Simon Tisdall of theGuardian of London observes, the UN’s “primary purpose was as a war-fighting machine.” When Congress enacted the 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 “obligations” to the UN and the international system it administers.

Granted, the UN war-making  system hasn’t operated in strict accordance with its charter — but this is just another case in which the text of a supposedly binding document has been transcended by the “historical gloss” 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 — festooned with specious citations — authorizing them to do whatever they damn well please.

William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.

Copyright © 2011 William Norman Grigg

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