To begin with, let us look back December 20, 2007 when the then Senator Barack Obama said "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."
President candidate Obama earlier the same year on August 1 said "No more ignoring the law when it's inconvenient. That is not who we are. . . . We will again set an example for the world that the law is not subject to the whims of stubborn rulers".
Libya was no threat to the US when President Obama waged 'war' in Libya. His administration defended his action on two grounds; a) the president is empowered by the 1973 war power act to wage war for 60 days, and b) the nature of the mission was not a war since it was more like a "time-limited, well defined and discrete" action. From the very beginning, these claims appeared specious and now have turned out to be inapplicable.
The war power act under the sub-title "purpose and policy" (section 2/C/3) clearly speaks about the state under which the US president can take action similar to that against Libya – "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces". Bruce Akerman – an Yale Law professor therefore, said that the WPA does not authorise a single day of Libyan bombing and that such act is breaking new ground in construction of an imperial presidency.
On 21st May, President Barack Obama sent a letter to the US congress to support a bipartisan resolution favouring military operation in Libya. He sent the letter on the 60th day since the bombardment on Libya started. This day was also the deadline day as according to the 1973 war power act, the president must get congressional authorisation within 60 days of any military operation, failing to do which will result in stopping of the mission in next 30 days.
30 days! Enough to complete any invasion by the US as we all know Iraq invasion took only 21 days in major combat operation. But this is not the point of discussion here, the point is legitimacy – the president did not mention the word "authorisation". Obama earlier this year on 21 March sent a letter to the congress notifying his Libya mission to oust Libyan leader Gaddafi on the ground that the latter committed crimes against humanity. But for now let's talk about the law – President Obama may not agree but there is a law and the law is any such mission has to be stopped within the next 30 days.
As California Democrat Representative Brad Sherman has pointed out, Obama is trying to "bring democracy to Libya while shredding the Constitution of the United States." He added "He cannot continue what he is doing in Libya without congressional authorization. When a president defiantly violates the law, that really undercuts our efforts to urge other countries to have the rule of law". The US president also came under fire from Republican Senator Rand Paul from Kentucky who has termed such unauthorised military action as "appalling" and "terrible precedence". But this is not all – the war power act also states that the president must seek congressional approval before any military action.
Then what happened during these 60 days? Nothing in fact. Obama administration simply kept aside this agenda; Democrat congressional leadership did not show any interest and the Republican did not even bother about what was going on. Obama in his March 21 letter to the Congress described the Libyan operation in consistence with the war power resolution. Interestingly, the justice department in an opinion on April 1 acknowledged the 60-day rule but did not question its constitutionality rather concluded that "President Obama could rely on his constitutional power to safeguard the national interest by directing the anticipated military operations in Libya—which were limited in their nature, scope, and duration—without prior congressional authorization."
Now comes the question, why Obama did not press the congress to authorise it before the deadline. Argument may be there – since NATO is now running the US initiated "operation odyssey dawn" under a new title "operation unified protector" the WPA is not applicable in this case. But Admiral James Stavridis since July 1 2009 has been holding the position of Supreme Allied Commander Europe while Charles Bouchard – a Canadian Air Force General is in charge of the NATO's Libya mission. But Stavridis as head of the US European command reports to the Pentagon. Now, who does not know that NATO is serving American interests since its inception in 1949!
Interestingly, presidents of both parties have often forgotten this part. Still president Bush, prior Afghanistan and Iraq invasion did manage to get congressional approval. In the recent past, there is no precedent of continuing military operation beyond 60 days. The precedent that is so close to present state is that of President Clinton's actions in Kosovo conflict that lasted for 78 days. His failure to get congressional approval before 60 days deadline was over. His administration then argued that since the congress had approved required fund for Kosovo operation, the operation was already approved.
But the Libyan scenario is quite different from Kosovo. The best part for Obama is that very few lawmakers are interested in this topic. They are just letting the president do whatever he wishes. It all started with three words — "no fly zone" — and afterwards hundreds of cruise missiles landed on the Libyan soil. The US congress seems to be little bothered that then commander in chief's effort to bring democracy in Libya is undermining the democracy and rule of law in the US.
Unless there is dramatic development in the US congress, the war power act which was born in 1973 immediately after the bloody Vietnam War amid President Nixon's veto and was intended to restraint presidential war making and establish congress' sole authority to get involved in such military conflicts, may succumb to its injuries.
Tyrants like Gaddafi must go and the world must react to save human lives but indiscriminate bombing of cruise missiles is perhaps, not the best way.
Meer Ahsan Habib is a development activist and freelance writer.