Kinetic Military Action and the Rule of Power.

America attacked Libya without provocation on March 19, 2011. America attacked Libya by the order of President Barack Obama. The President authorized this action based on authority of the United Nations. The President did not authorize this action based on either the Constitution or Federal law. America has conducted missile strikes, and air strikes, against Libyan military targets. These facts are not in contention.

Kinetic Military Action and Rule of Power

This is the United States Constitution declaration of power granted to Congress concerning war: Article 1 Secton 8 “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;” This is the United States Constitution declaration of power granted to the President: Article 2 Section 2 “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This is the Federal law on the delineation of authority on the use of military force: United States Code Title 50 Chapter 33-1541 War Powers Resolution Purpose and policy From: http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001541----000-.html

c) Presidential executive power as Commander-in-Chief; limitation The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

These facts are not in contention.

What you might be missing is that this section above is Federal law, not just some optional resolution thing- like the Senate declaring Friday, March 11, as World Plumbing Day. Or, the Congress as a whole declaring the month of March as National Women’s History Month. Or, better yet, Congress congratulating in a resolution the Eastern Washington University Football team for defeating the University of Delaware Blue Hens (Go Eagles!).

No, this was a resolution that was voted on by both houses of Congress, was vetoed by President Nixon, and then voted on again to override that veto and become law. In other words, it isn’t a resolution anymore; it is the law of the land. It became the law on November 7, 1973. It has been violated only twice. There was no accounting for the first violation; Clinton’s bombing of Yugoslavia and the use of ground troops. The question becomes, will there be an accounting for the current violation? Obama’s bombing of Libya?

Clinton got away with it because he had enough public backing and support in Congress to defeat politically any challenge. Thirty one Congressmen tried to challenge him in federal court but lost due to lack of standing. The courts didn’t rule on the merit of the violation, but stated that it wasn’t a matter for them. In Campbell v. Clinton they wrote it was a matter between the executive and legislative branch of government. The remedy for the violation lay with Congress. So, it wasn’t a crime, because Congress didn’t prosecute the crime. The courts stated the power to address the crime lay with Congress.

There are articles online describing U.S. troops on patrol in Kosovo in 2010, eleven years after initiating hostilities. There is still a US base in Kosovo. How does that fly with the law listed above? This is what you have when you have men who replace right and wrong, with legal and illegal. This is what you get when you have men who argue the meaning of “is” is. This is what you get when you abandon principles and go with agendas, political whims, and hubris. The concept pushed in the 1990’s by Liberals that you can separate character from the job, are now bearing fruit. Postmodernism is now on the world stage.

America functions as a Republic because of the rule of law. But, there is no respect for the rule of law when the people of power do not have the character needed to enforce that law. What has replaced the rule of law in society is the rule of power. Who exercises power, has power. For all the amateur executions of statecraft since obtaining the office of the President, Barack Obama understands the community organizing principal of power very well.

When I woke up Friday, March 19th, the report was that the US had fired missiles on Libya, I waited to find out the reason. I saw no advance warning. I saw nothing where the President had gone to Congress for authorization. By Monday I called the local offices of all six Federal representatives for Kansas (four Congressmen, and two Senators). I talked to uninformed local staffers who either were clueless, or argued that the President got his authorization from the U.N. One staffer snidely commented that “Bush had done the same thing.” I then gave that staffer the resolution number that President Bush had obtained from Congress to use force. He had no response.

I faulted all six representatives only for not having briefed their staff. There should have been some ongoing education of all staff on major policy issues should constituents call in. The initiation of war with another nation would seem to be a major policy issue. However, three days were not enough to hold the representatives to task for anything other than that oversight. Periodically I checked each web site for the representatives for press releases over the attack on Libya. By Tuesday Congressman Pompeo had a mild note of disapproval for not being informed enough of the President’s plans, but nothing on the usurpation of Congress’s power, or the President’s violation of Federal law.

I called again on Monday March 28th. I asked the same question I did on Monday March 22nd. Did the representative have a position on the President’s act of war without Congressional approval? Once again, the question seemed to catch the callers off guard. Some gave a line about supporting actions against Libya. But when asked the reasonable follow up question of just who the rebels were, the staffers were stumped. They didn’t know.

That’s all right. The President, the Joint Chiefs of Staff, and the Pentagon, don’t know who the rebels are either. And that is the point on why the founders set up the Congress, and not the President as the power to initiate war. When America goes to war, the issue should be debated, considered, and then decided upon. President Bush sought, and got, a resolution to use military force in Iraq. The first President Bush did the same in 1991 even though the UN also gave authority. Because, we don’t derive our legal authority from the UN.

Some have argued that the Congress only has the power to cut off funding. However, that is an absurd, and not very reasoned, idea. So far in the Libya conflict there has been no specific allocation of funds. We are using munitions and forces that have already been paid for. If that was the standard the President could launch at any nation that raised his ire, including Israel or the Bahamas if he chose. Imagine one bad golf outing and BOOM! a cruise missile comes through the clubhouse.

No, Congress has the authority to declare war. And, despite a new argument cropping up that a declaration of war is only necessary when a country wants to have all the advantages and legal rights of a formal war, when you fire over 100 cruise missiles you have declared war in fact, if not on paper.

If suddenly a warship explodes at a pier in San Diego, and it turns out Libya is responsible, is it terrorism? If a nuclear power plant is attacked in New York, is it terrorism? No, it is an act of war. The original acts by us, open us to the opposition. Or did you think that war was one sided? The chattering twits that pass for journalists from O’Reilly on down to the vacuum tubes on MSNBC seem to think that we, America, dictate when and how wars start and stop. Simply stop bombing on Thursday, for example, and the war is over. They don’t even consider that the opponent may have other ideas. What if they don’t think it is over? What if they decide that they are grumpy about being attacked and decide to strike back? We were a bit grumpy after Pearl Harbor.

Now, understand it never rises to whether Libya deserves bombing. There are a lot of dictators that deserve getting wiped out. The question is whether we have the moral right to do so, and have gone through the Constitutional and legal channels to do so. If we do decide, as a nation, to start taking out dictators as a matter of policy, then it is up to us as a nation to decide that through our representatives in Congress. Our Founding Fathers set up the system that way.

So, the President clearly violated his Constitutional oath. He clearly violated Federal law. He did so in a situation that is ill defined, and for reasons that are still not justified, even after his speech to the nation on March 28th. The reason I have called the six Kansas representatives is to see if they understand the Rule of Law, or the Rule of Power. The President thinks, and acts, and follows, the rule of Power. He has done so on Obamacare and ignoring a Federal judge. He has done so with his Justice Department on every issue there is. He is doing so now with an illegal war. The people who can object, the people who should be holding him accountable, is Congress. They are charged through their oaths of office, to follow the Rule of Law. They have not done so.

I am aware of only one Republican Congressman, Tom McClintock of California, who follows this rule of law. On his web site was a video clip of him reading out the very facts I have listed above. The transcript for that speech from the floor of the House is also on his web site. There is nothing on any of the Kansas representative web sites to show they acknowledge, or intend to follow, the example of Congressman McClintock in enforcing the Rule of Law. As of Monday April 4, 2011, that remains the case. There is no desire by our elected officials to fulfill their oaths: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

The Founding Fathers set up three equal branches of government. However, as things stand, the President and the Executive branch are ignoring the legislative and the judiciary because there is no opposition. In this war, all six Kansas representatives have shown no public actions to support their duties to the Constitution or Federal law. The Rule of Power is triumphant over the Rule of Law.

Here is the quote of the President himself in 2007: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

Since the President himself has said so, he knows what the Rule of Law is. He also knows that he can ignore the Rule of Law. He knows the people who can, and should, hold him accountable don’t have the moral fiber to do so. The President understands the Rule of Power, and respects only the Rule of Power, and he is free to exercise that rule with the 112th Congress of the United States.

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