Examining Kucinich's claim

In the great Rob Reiner-Aaron Sorkin film, “The American President,” President Andrew Shepherd (played by Michael Douglas) decides to retaliate after Libya bombs a U.S.-manned missile installation in Israel. In a conference room meeting with his White House staff and military leaders to discuss the possible air strike against Libya, the following dialogue occurs:

A. J. MacInerney, Chief of Staff: Sir, it's immediate, it's decisive, it's low-risk and it's a proportional response.

President Shepherd: Someday someone's going to have to explain to me the virtue of a proportional response.

(…)

President Shepherd (after ordering the air strike): What I did tonight was not about political gain.

Leon Kodak, Deputy Chief of Staff: Yes. sir. But it can be, sir. What you did tonight was very presidential.

President Shepherd: Leon, somewhere in Libya right now, a janitor's working the night shift at Libyan Intelligence headquarters. He's going about doing his job, because he has no idea, in about an hour he's going to die in a massive explosion. He's just going about his job, because he has no idea that about an hour ago I gave an order to have him killed. You've just seen me do the least presidential thing I do.

At no point in this scene does the president pick up the phone and consult with a Dennis Kucinich.

Kucinich, Democratic congressman from Ohio, has claimed that President Obama committed an “impeachable offense” by joining allies in air strikes on Libya.

The intent of this post, then, is not to argue the merits of the military action, but to ask whether it is, indeed, constitutional.

First, I am not a fan of the fiery, hard-left political views of Kucinich. Time and again he has voted against Democratic proposals in the U.S. House, then justified his vote on his Web site. He votes “no” because the bills don’t go far enough. Kucinich wants it all, and he wants it now, overlooking the fact that sweeping policy changes often come in increments.

Is Kucinich right that Obama should have gotten Congressional approval before ordering U.S. military strikes on Libya?

In 1986 when Ronald Reagan ordered air strikes on Libya in retaliation for the bombing of a Berlin discotheque, he consulted with bipartisan members of Congress, but I can find no record that Congress voted to give him authority to do so.

The Department of Justice has this to say:

“(T)he President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.”

Using these criteria, if we are to exclude Ghadafi’s abuse against his own people, then Congress should never have given sanction to the U.S. invasion of Iraq.

Read the Department of Justice’s report, “The President’s Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them” HERE.

How would one interpret the president’s “broad” and “inherent” Constitutional powers in this action?

According to Kucinich, "Such an action - that involves putting America's service men and women into harm's way, whether they're in the Air Force or the Navy - is a grave decision that cannot be made by the president alone."

That is not a true statement according to the powers granted the executive after 9/11.

"In a statement on his Web site Friday, Kucinich made clear he thinks Obama has violated Article 1, Section 8 of the U.S. Constitution, which grants Congress the exclusive power to declare war."

But, Obama has no more declared war on Libya than Reagan did in 1986.

Perhaps I need to do a little more digging – where is constitutional authority Jonathan Turley when I need him?

Or, perhaps this is a matter which should be clarified by both Congress and the courts.

POSTSCRIPT

There's a lot of hellraising about this issue, a squaring off on the left of anti-war advocates and folks like me who believe force is sometimes necessary. There also seems to be a confusion, IMO, in distinguishing retaliatory air strikes and a "declaration of war." This post has been strengthened by readers' comments, which you can access by clicking on the post title above or on "comments" below. Thanks!