by Jeff Matthews

Dennis Kucinich, Walter B. Jones, John Conyers, Jr., Roscoe Bartlett, Michael E. Capuano, Dan Burton, Howard Koble, John J. Duncan, Jr., Timothy V. Johnson and Ron Paul are filing suit against Barack Obama and Robert Gates for violating the U.S. Constitution in connection with military actions and Libya.

They allege that the defendants are engaging in an Unconstitutional war in Libya.  The defendants claim that the activities in Libya do not amount to “war” and that their actions are pursuant to a treaty among NATO members and a United Nations Resolution.

The suit complains that the President and Mr. Gates are violating Article 1, Section 8 of the Constitution, which gives Congress the exclusive authority to authorize war.  It also complains that they are violating Article 1, Section 9 of the Constitution for using funds out of the Treasury which Congress did not appropriate for war in Libya.   Article 1, Section 9 states that “[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

The petition filed by the Representatives states:

U.S operations in Libya now include all of the classic elements of a war, including but not limited to close combat support, bombing of Libya’s capital and key Libyan military assets, and commitment of U.S. personnel to ground operations to assist the rebel forces in the Libyan civil war.

In part, Kucinich, et al. place reliance on Bas v. Tingy, 4 U.S. 37 (U.S., 1800), in which the plaintiff was seeking a reward pursuant to a statute that provided compensation to persons who re-captured American ships and cargo after they had been initially captured by the enemy.   The U.S. Supreme Court was called upon to determine whether, in the absence of a declaration of war by Congress, limited naval hostilities between Americans and the French constituted war, such that the plaintiff would be entitled to the reward.   The various justices wrote separately, and all essentially concurred with the reasoning set forth as articulated by Justice Washington:

But hostilities may subsist between two nations more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termed imperfect war; because not solemn, and because those who are authorised to commit hostilities, act under special authority, and can go no farther than to the extent of their commission. Still, however, it is public war, because it is an external contention by force, between some of the members of the two nations, authorised by the legitimate powers. It is a war between the two nations, though all the members are not authorised to commit hostilities such as in a solemn war, where the government restrain the general power.

Kucinich, et al. also note that the United Nations is accusing both the Libyan government and the opposition movement of engaging in war crimes.

With NATO involvement also in play, Obama is suggesting that the United States is bound, as a member of NATO, to participate.  Kucinich, et al. refute this argument, by noting:

During hearings before the Senate Foreign Relations Committee in 1949 on the proposed North Atlantic Treaty, Secretary of State Dean Acheson testified that the Treaty would “not mean that the United States would automatically be at war if one of the other signatory nations were the victim of an armed attack . . . because [u]nder our Constitution, the Congress alone has the power to declare war.” North Atlantic Treaty: Hearings Before the Senate Committee on Foreign Relations, 81st Cong. 11 (1949).

The complaint further states that, as regards any need to comply with U.N. resolutions, “[a] U.N. resolution does not negate any provision of the United States Constitution since it is not within the power of the President to sign a treaty (or the Senate to approve a treaty) that abrogates a constitutional provision.”

Kucinich, et al. also point out that Norway is withdrawing air support and Germany is not intermeddling in hostilities and will limit its support to post-war efforts.   Both are members of NATO, and such actions would seem to indicate that NATO members are not compelled to circumvent domestic legal processes and to participate in military actions by other NATO forces.

Also, in issue in the lawsuit is an alleged violation by the defendants of the War Powers Resolution.  The War Powers Resolution, 50 U.S.C. §§ 1541-1548, requires the President to notify Congress within forty-eight hours of ordering the U.S. armed forces into hostilities and requires the withdrawal of American forces if congressional authorization is not given within sixty days of the President’s notification. 50 U.S.C. §§ 1543(a), 1544(b).

President Obama declined to seek authorization to use military force in Libya within the sixty-day period under the War Powers Resolution.  The Obama Administration maintains a policy that the President has the inherent authority to commence military operations like those in Libya and is not bound by the terms of the Resolution.

In a May 20, 2011 letter, President Obama claims that:

…the War Powers Resolution does not apply because:

U.S. participation has consisted of: (1) non-kinetic support to the NATO-led operation, including intelligence, logistical support, and search and rescue assistance; (2) aircraft that have assisted in the suppression and destruction of air defenses in support of the no-fly zone; and (3) since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO-led coalition’s efforts.

Kucinich, et al. reply that the above-referenced activities fall squarely within the War Powers Act:

The level of involvement described by the President’s letter falls well within the scope of the War Powers Resolution, which applies whenever U.S. armed forces are either “introduced . . . into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” 50 U.S.C. § 1543(a)(1), or are introduced “into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces,” id. § 1543(a)(2).

On June 3, 2011, the House of Representatives passed H.R. Res. 292, declaring that the President shall not deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya.  On June 14, Speaker John Boehner sent a letter to President Obama informing him that the ninety-day period under the War Powers Resolution would pass on June 17 and that the President has failed to comply with the statute.  Speaker Boehner objected to the President that, since the outset of military action, “the White House has systematically avoided requesting a formal authorization for its action.”

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

Copyright © 2011 by Permission to reprint in whole or in part is gladly granted, provided full credit to the author and this website is given.

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