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.


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!


Jerry Critter said...

Here is what Candidate 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.
It is always preferable to have the informed consent of Congress prior to any military action."

before President Obama did just the opposite.

B.J. said...

Jack Cafferty, The Cafferty File, CNN, asks whether Obama should have “consulted with Congress before sending the U.S. military against Libya?”

In his report, Cafferty said, “The president did hold a briefing for congressional party and committee leaders in the White House Situation Room on Friday before any attacks were launched. But many lawmakers say that wasn't enough.”

Read viewer comments

Frodo, in an F-15 on your wing, Sir, said...

Good work, Merry. Note that Representative Kucinich has made use of his comments to plead for political donations. But, to the point, let us note that that an "imminent threat" is considerably broader than a bunch of Sunnis gathering at airports all around the globe. A President's Judgement is what we've just seen, and he didn't have to convince anybody else with the testimony of somebody named 'Curveball'.

B.J. said...

Constitutional law professor Jonathan Turley speaks. His post is fairly brief. Rather than examine the constitutionality of Obama’s action in Libya, which IS the subject of my post, Turley criticizes the president for “going to war.” I might be stupid, but I have never seen such “air strikes” defined as a “declaration of war.” I suppose he has implied Obama’s actions are unconstitutional, but this is NOT a legal examination.

Obama commits US to third war

Octopus said...

Legislation that defines the president’s war making powers:

The Vietnam era War Powers Act (passed in 1973 over the veto of then Pres. Nixon) triggers a 60-day time limit that grants the president discretionary emergency powers up to 60 days, pursuant to section 1544(b), before consulting Congress. Some recent noteworthy cases:

1981: President Reagan deployed military advisors to El Salvador but submitted no report to Congress. Members of Congress filed a federal lawsuit to force compliance with the Resolution, but the U.S. District Court hearing the suit declined to become involved in what the judge saw as a political move.

1982-83: President Reagan sent Marines to Lebanon to participate in peacekeeping efforts; while he did submit reports to Congress under the Resolution, he did not cite Section 4(a)(1), and thus did not trigger the 60 day time limit.

1993-99: President Clinton sent armed forces to Bosnia and Kosovo. These operations were pursuant to United Nations Security Council resolutions and conducted with member states of NATO. The President made a number of reports to Congress, but never cited Section 4(a)(1), and thus did not trigger the 60-day time limit. Representative Campbell and other House members filed suit in Federal District Court, charging that Clinton violated the War Powers Resolution, especially since 60 days had elapsed since the start of military operations in Kosovo. The President noted that he considered the War Powers Resolution constitutionally defective. The court ruled in favor of the President, holding that the Members lacked legal standing to bring the suit; this decision was affirmed by the U.S. Court of Appeals.

2001: In the wake of the terrorist attacks on the World Trade Center and the Pentagon, Congress passed Public Law 107-40, authorizing President George W. Bush to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Impressions: Inasmuch as Jonathan Turley does not go into the rigors of case law, his opinion is more personal than legal. Kucinich seems to be engaging in hyperbole and grandstanding but little else.

B.J. said...

God love ya, Octopus!!! I was just reading the comments on Jonathan Turley’s post, and a reader there brought up the “60-day time limit.” So, I was on my way to research that when your comment came in. I have always been grateful for what DemWit readers contribute.

Turley’s was an unreasoned personal opinion. As I stated in an email to a friend: Kucinich is an ineffectual, over-the-top, hard-left also-ran.

Obama is Commander-in-Chief.

tnlib said...

Solid post, which I'm going to have to re-read in the morning when I feel a little brighter. Have been at an OFA meeting and am a little brain dead at this point. But want to point out an interesting article on MadMikesAmerica which ties into this. It's about the lunatics on the hard left, Kucinicb supporters, and ... well, just read it.


tnlib said...

God bless Octo. Quite simply, this is another in a long list of criticisms against Obama that are baseless and unsupported, and ones for which there are lots of precedents. We can expect this from nuts like Newt but it is distressing to see the same kind of reactions from the hard left, as exemplified by Kucinich.

Octopus said...

More useful info from HuffPo:

Gaddafi has provided weapons and training to numerous terrorist organizations around the world during his four decades in power, including the Irish Republican Army, Spain's ETA, Colombia's FARC, and Sri Lanka's Tamil Tigers. Amnesty International lists at least 25 assassinations of critics of the Libyan regime abroad between 1980 and 1987 committed by the Colonel's extensive network of diplomats and spies, though the actual figure is estimated to be much higher.

In 1986 Libyan agents bombed the La Belle nightclub in West Berlin, killing three people and injuring 229. In 1988 Gaddafi ordered the bombing of Pan Am flight 103 over Lockerbie Scotland which resulted in the loss of all 270 (passengers + flight crew + persons on the ground = 270), and in 1989 he ordered the bombing of UTA flight 772 over Niger, killing all 171 passengers

A very bad dude by all accounts ... unless one is a Republican who looks for any excuse to criticize President Obama no matter what he does.

More news: Public approval of President Obama's handling of Libya: 77-79%. Which leads me to another question: Why is the GOP always on the lunatic side of every debate?

Shaw Kenawe said...

May I add my blessings to our beloved cephalopod? It's always a good idea to understand the facts around issues before writing an opinion.

I'm trying to do that on my blog. I've held back on what I think until I know more.

Thanks to BJ and (O)CT(O)PUS, I'm understanding Obama's reasoning behind his actions.

I've had to deal with several far-right relatives who have nothing but contempt for this president, and who actually wanted Kucinich to win the nomination!

Tiny said...

Well, looks like the Obama critics need to wipe their mouths because looks like they still have some bull shit on their lips since NATO is now in charge of the No Fly Zone over Lybia. And, it didn't take 8 years to do it either! How about that?

It's going to be interesting to see what kind of back peddling transpires. So stay tuned folks. The final script might be more comical than we've heard yet. But keep listening to the clink, clink of the coins piling up with certain politicians.

Tiny ... puzzled said...

Tiny can't hardly wait to hear the talking heads now that Canada will be in charge of the sea and air enforcement of the Lybia "No Fly Zone."

Tiny just read an article by Linh Dinh: 'Winding Down Obama' in which he blasts Pres. Obama for promising to "walk the picket line..." and why he isn't out with the protestors. Is it possible that these so-called educated people do not know the difference between a "picket line" and a "protest crowd"?

Tiny has lots and lots of questions!

tnlib said...

Tiny: the far-left is too busy criticizing EVERYTHING Obama say, does, thinks, that they do not have to listen to facts. If you think that sounds like a description of the far-right, you've hit the nail on the head.