lollardy

In a series of articles, Bruce Ackerman and Oona Hathaway outline a very convincing case against the legal and historical authority of the Obama administration to engage in hostilities in Libya (see here, here, here). One major problem they point out is that the supposed "power of the purse" held by congress that John Yoo is infamously known for crediting as the only legitimate check on executive war powers, is substantially mitigated by the huge pentagon discretionary budget:

Some, including John Yoo, argue that the time limit established by the resolution isn't really necessary. They suggest that Congress can stop a war simply by denying the president funds needed for the conflict. But this simply isn't true in this day and age. The current $660 billion Pentagon budget allows the president to continue the war for a substantial period without seeking a special appropriation. Indeed, Obama has already spent more than $550 million on the Libya campaign without formally requesting a single cent of it. The moment for congressional decision should not depend on creative bookkeeping in the Defense Department. Until the president comes forward with a special request for new money to pay for the war, it will require two-thirds of both houses of Congress to deny him funding for the military operation over his likely veto.[link]

So Ackerman accurately shows the problem: a 2/3rds majority in both houses is required to overturn illegal unilateral executive war-making, virtually eliminating the possibility that they will act at all, much less quickly enough to actually stop a burgeoning illegal war. One interesting suggestion offered is that a sizable independent tribunal should be established with 12 year term-limits to provide a sane check on executive unilateralism: 

To respond to this danger, Congress should create a new legal tribunal within the executive branch that will be more insulated from raw political pressures. This panel should consist of nine judges, appointed by the president and confirmed by the Senate, for 12-year terms. This will provide the relative independence needed to consider whether the sitting president's lawyers are presenting serious legal arguments for their unilateral actions. The new tribunal would give the president the institution he needs, under modern conditions, to fulfill his constitutional obligation “to take care that the laws be faithfully executed.” The present system too readily transforms the rule of law into an apologia for arbitrary presidential power.

But suppose this measure somehow came into being:  Obama(or president Pailin, Romney, Bachmann, etc.) would simply appoint nine executive-friendly experts whose presence would last for 12 years. Much as the supreme court has quickly turned into a corporate/secrecy friendly place, there is no reason to think that an executive would ever appoint unfriendly legal arbiters to undercut presidential decisions. And it's obvious how great of a job the senate did at stopping the appointment of careerist, spineless justices to the supreme court. Additionally, the whole point of using the legislative houses to check power is to allow the people a voice in the most important decisions of the executive branch.  By further diminishing the will of congress to act, a new tribunal would threaten to even further diminish the voice of the people in executive decisions. 

Ideally, wars of choice would, due to their extreme impact on the economy and moral standing of every American, and regardless of the source of their funding, by necessity require a national referendum and congressional affirmative authorization (as opposed to a 2/3rds veto-immune negative). The American people should always have a say when their taxes and children are used to fight wars overseas, and when the blowback from a conflict affects their danger and liberty at home due to terrorism fears. If you want to find a suitable check on executive power, the best place to look is to the people, not to yet another entrenched corruptible DC institution.  

Ackerman is correct in identifying the problem of keeping a giant money chest sitting around allocated to the DOD just waiting to be spent on whatever war the president chooses to wage.  Its like the old comparison to a three year old walking around a work site with a hammer. Once again, the problem of the purse is at the root of the constitutional malfunction. Perhaps an alternative would be to explicitly limit the availability of discretionary funds to congressionally authorized conflicts, and those falling within the 60/90 day limits defined by the WPR. But, isn't that how it is already?

The fact is that the president habitually breaks the spirit and letter of the constitution, and the bodies which are already in place to check him (the supreme court and the legislature) are too corrupted and factionalized to fulfill their duties to the constitution and the principles of republican government.  This does not call for yet another new institution, it calls for extensive house-cleaning in all the political bodies, a constitutional amendment substantially removing money from the political process, and one that obliterates swinging door lobbying in all governmental organs, especially the defense and intelligence sectors.

Almost every major problem in the US is either caused or exacerbated by this collapse of the rule of law in the face of corporate money and political dominance--this is no exception. The only way to address things is for an American creative popular mass protest movement on the streets and in the halls of power. Wisconsin is showing the way. As we near the day of remembrance of the American declaration of independence, it is time for a new declaration of independence--from corporate and financial power, from military quagmires, from the austerity budgets used to pay off the banks and the war mongers who pilfer our children and rob our parents while adding nothing but sadness and hopelessness to the world. Their time is coming to a close, it is virtually guaranteed. (If citizens don't do it, nature will.)

Harold Koh, before a senate panel, was grilled on his (and Obama's) view of the War Powers Resolution, where he stated this (h/t Adam Serwer):

"[T]he operative term, "hostilities," is an ambiguous standard, which is nowhere defined in the statute," Koh testified. "An operation that was expressly designed to be limited—limited in mission, exposure of U.S. troops, risk of escalation, and military means employed—led the President to conclude that the Libya operation did not fall within the War Powers Resolution‟s automatic 60-day pullout rule." According to the New York Times, "American warplanes have struck at Libyan air defenses about 60 times, and remotely operated drones have fired missiles at Libyan forces about 30 times."

The major problem with this explanation is that in every other case that involves the estimation of threat, as the determination of the meaning of "hostilities" here entails, and where the rights of individuals at home and abroad are concerned, this narrow reading is completely inverted. In the Global War on Terror, no single life, moral principle, or expense is often spared in tracking down every terrorist in the name of security. But when security or even the traditional institutional modes of checking executive power might call into question the prudence and legality of an aggressive military action, this broadest of interpretations is completely ignored.

Bomb Yemen to stop the terrorists. Bomb Pakistan to stop the terrorists.  Libya? Well this isn't about terrorism, so in this case the hostilities are "limited".  Guess what, it doesn't work that way--in the middle east of the 21st century, limited hostilities do not exist.  The ability of a single individual--following the logic of the security state-- to wage war with weapons of mass destruction can never be underestimated.  Thus the notion of limited conflicts, and the pairing down of terms like "hostilities" is laughable on its face, especially in light of typical US government logic in the war on terror. There is perhaps no better an example of this type of equivocal thinking than Libya:

Suppose that Qaddafi, a dictator scorned, manages, as he has been able in the past, to effect a terrorist attack on Americans.  This is not a fanciful possibility, and the last time I checked, terrorist attacks were hostile acts.

One propelling force behind the Obama administration here is that this is a convenient opportunity to cowtow to humanitarian calls for help with the Arab Spring movement. Unfortunately those making the calls for intervention forget that the US almost never acts for these types of reasons, except as pretext.They also fail to recognize that the Arab Spring is in many ways a war of independence from US dominated regimes. America's intervention, particularly in strategic locations, is precisely what they don't want, whether they know it or not.

Libya is the largest oil and gas reserve in Africa.  Aiding a new compliant regime in the region strokes our European allies whose help we will need when/if we decide to oust the Iranian regime from power. It is also a convenient time to distract from the new signs of failure in the global economy, and to stimulate it for another couple of years with massive military expenditures. And of course there is the time-tested idea of global security(dominance)--meaning that nobody knows what the fuck we'll do at any given moment, so they must bend over backwards to avoid the wrath of the US military.These are some of my guesses on why Libya intervention seemed like a good idea to the fools in office a few months ago.