Presidential lawlessness, RE: Libya

Discussion in 'Law and Justice System' started by BenNatuf, Mar 25, 2011.

  1. BenNatuf
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    BenNatuf Limit Authority

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    Much debate has been given to the Presidents authority or lack thereof to order attacks on Libya. Here is my assessment of that subject.

    Article 43

    it can be seen in AR 43 that any support given to the UN in support of UNSC resolutions must be in accordance with a "special agreements", and "in accordance with their respective constitutional processes"

    So whether or not we are obligated under the UN Charter to provide support is completely dependent on whether or not there are any AR 43 agreements

    There are not, but just to continue as if there were...

    Constitution

    1. Article 1 sec 8 gives the Congress the power to declare war.

    2. Article 2 makes the President the CinC of the armed forces.

    3. Article 3 gives the SCOTUS the authority to decide all cases in law and equity in accordance with the Constitution of the US, laws, and treaties.

    To find the extent of these powers, we must look to the law. First and foremost what in the law is "war"?

    Is there a contention by force between two nations under the authority of their respective governments?

    Yes, if your honest.

    Some may attempt to argue that since congress has not authorized it it is not "under the authority" of the US government. That may be true, but its irrellevant as the president is the CinC and he is the "authority" the action is being conducted under, making the argument circular in reasonning as, if he is the authority, then it is war and if it is war, we return to the question of whether the President as CinC can make war without a declaration of war.

    So, by virtue of the opinion of the Constituional body empowered to say what war is our actions in Libya constitute "war".

    Is this war "lawful"? To answer this we must determine first what a DoW is.

    From the Constitutional body empowered to decide these thing.

    Here we see that an authorization to commit acts of war from the Congress is in fact "war". Lest you be confused they made it simple

    Does the President have legitimate authority to make war? To answer this we must answer two question.

    1. Does the president hold himself the power to make war without Congressional authorization?

    2. If not, is the action in Libya authorized by the Congress?

    War Powers Resolution

    Here the Congress is clear, and the law is clear. The president may commit forces into hostilities either

    1. persuant to a declaration of war
    2. persuant to specific statuatory authorization
    3. To respond to an attack, repel an invasion, or prevent an imminent attack.

    The WPR cannot be used as authorization. Seperate and specific statuatory authorization is required.

    Some have used the Consultation provision to justify the action, but this completely overlooks that the Consultation is neccessary only in the event the action is authorized to begin with, as if its not, there will be no action and no reason to cunsult. Complying with the consultation provisions after the fact, does not create authorization for the acts to be taken before the fact. This argument is akin to robbing a bank and then claiming it's OK because you didn't cheat on your taxes. Not to mention the text of the WPR prohibits its use.

    1 and 3 are not applicable that leaves 2: Specific statuatory authorization.

    Is there specific statuatory authorization? To find this out we have to look at treaty provisions and the laws enacted to empower them.

    The NATO Treaty.

    Some have claimed we have an obligation under the NATO treaty which empowers the President as it has the force of law and has been ratified. But what exactly does the NATO Charter say?

    Has a NATO country been attacked by Libya?

    No.

    End of NATO treaty argument.

    This brings us to laws enacted to empower AR 42 and 43 of the UN Charter

    The United Nations Participation Act of December 20, 1945

    1. The President is empowered to negotiate agreements under AR 43 which are subject to Congressional authorization.

    2. The President may use troops covered under such AR 43 at his discretion in furtherance of an AR 42 resolution.

    3. No troops other than those who are covered under an AR 43 agreements may be used without Congressional authorization.

    Is there an AR 43 agreement in force that the president could draw forces from to act in furtherance of a UNSC AR 42 resolution?

    No.

    Is the President legally authorized to commit troops not covered in an AR 43 agreement?

    No. In fact, he's restricted from it.

    The Congress has the Constitutional power to "make all laws necessary and proper all powers vested by the Constitution in the Government of the United States or officer thereof"

    The President is an Officer of the United States, and persuant to the Congressional authority to declare war they have restricted the Presidents ability to make war without their authorization to "respond to an attack, repel an invasion, or prevent an imminent attack".

    They have empowered him to engage in UNSC actions under AR 43 to "negotiate a special agreement or agreements which shall be subject subject to the approval of the Congress" they further empower him to act without further authorization in support of AR 42 of the UN Charter "pursuant to such special agreements" and restrict him from the use of any other forces except those covered in AR 43 agreements.

    Clearly there is no legal authority for the President to act in Libya. Further, it is clearly unlawful for him to do so without Congressional authorization.

    Avalon Project - NATO Treaty; April 4, 1949

    War Powers Resolution of 1973

    BAS V. TINGY, 4 U. S. 37 :: Volume 4 :: 1800 :: US Supreme Court Cases from Justia & Oyez

    FindLaw: U.S. Constitution: Article II: Annotations pg. 12 of 18
     
    Last edited: Mar 25, 2011
  2. BenNatuf
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    BenNatuf Limit Authority

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    If I missed any of the Arguments in favor of Presidential authority sans congressional action, feel free to make them.
     
  3. M14 Shooter
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    M14 Shooter The Light of Truth

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    All very nice.

    The Obama agrees with you - according to Him, the Constitution gives the Commander in Chief no such power:

    Boston.com - Special reports - News
     
    Last edited: Mar 25, 2011
  4. percysunshine
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    percysunshine Gold Member

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    It is obvious that Obama is going to run for President of Libya in 2012. He sure as heck will not win here.

    He is just laying out the groundwork for future kenetic despotism.
     
  5. Midnight Marauder
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    The President has violated NO laws. Bottom line. Period.

    Even if he did violate the WPA, there's NO enforcement provision in it, no criminal element.

    Congress can de-fund the action, that's about it. People who are calling for impeachment or any other such action look as stupid as they did in 2004 with Booooosh.
     
  6. M14 Shooter
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    M14 Shooter The Light of Truth

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    The only person discussing impeachment over a President unilaterally going to war w/o congressional approval is Joe Biden.
     
  7. percysunshine
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    percysunshine Gold Member

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    Joe is a gift...if only as a reference point....
     
  8. Midnight Marauder
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    Far from it. Have you not been keeping up? The same little group of Congresspukes who wailed during Booooosh are wailing now. At least they are consistently wrong and stupid.
     
  9. M14 Shooter
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    M14 Shooter The Light of Truth

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    Well... it seems to me that if the President doesn't believe He has the power to do what he is doing and that the VP believes doing what the President is doing is an impeachable offense, then impeachment -must- be a reasonable course of action.
     
  10. Midnight Marauder
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    The VP is, and was, WRONG.
     

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