Obama Must Pay for His Illegal War

Libya trampled the Constitution. Someone must be held accountable.

The rebels’ looming triumph over Libyan dictator Muammar Qaddafi has caused supporters of the Obama administration to do a victory lap, but the conflict is not yet over—and the impact on America has just begun.

However, the imminent end of U.S. military action provides Congress with an opportunity to confront the president’s apparent predilection to conduct illegal wars. When President Barack Obama took the United States into Libya’s civil war in March, it was yet another war of choice that served no American security interests. To the contrary, bombing a government that had abandoned its nuclear program and dropped plans for long-range missiles made peaceful denuclearization of other nations, such as Iran and North Korea, well nigh impossible.

At the same time, Washington unleashed unpredictable political forces in Libya. Qaddafi’s imminent demise is welcome, but a liberal, democratic future for the North African nation is not certain, and perhaps not even likely. Events in Egypt next door show the many barriers to creating a genuinely free society.

Nor did the administration succeed in its alleged humanitarian mission to protect the Libyan people. The initial claims of prospective massacres were propaganda, a la George W. Bush’s WMDs in Iraq. In fact, Qaddafi had slaughtered no civilians in any of the cities he had earlier retaken from the rebels, and his incendiary rhetoric was directed against armed insurgents.

Worse, by adopting a minimalist military policy, the administration prolonged the conflict, resulting in far more deaths. Low-tech civil wars are usually bloody: the administration turned a potentially quick victory into more than five months of arduous fighting. Having allegedly gotten involved to save lives, President Obama prosecuted the war in a manner almost designed to maximize civilian casualties.

Still, unwisely going to war is hardly unique to this president. The good news, so far at least, is that Libya is far less consequential than Iraq. President Bush’s war blunder was catastrophic. President Obama’s has been modest.

Where this administration outshone its predecessor was in ostentatiously conducting an illegal war, treating the U.S. Congress and, more important, the American people as idiots. At least President Bush sought congressional authorization, if not a formal declaration, and never denied that he was fighting a war. President Obama played George Orwell and claimed that no hostilities were occurring even as American planes, missiles, and drones killed Libyan military personnel and destroyed Libyan military materiel.

For a brief moment Congress flared in indignation, but it quickly retreated, in part cowed by the claim that it would be irresponsible to undercut the administration’s ongoing non-hostile hostilities.

Now that U.S. and NATO participation is largely over—with limited strikes backing rebel advances on the final Qaddafi strongholds in the south—Congress should revisit the issue and stand by the Constitution. President Obama once taught constitutional law, but he obviously should have been a student again.

The Founders wrote the Constitution as they did to stop precisely such a unilateral war. Indeed, one of their greatest fears was that America’s president would act like the British king, launching unnecessary wars on no one’s authority but his own. The early Americans consciously tried to make U.S. participation in war less likely. Article 1, Sec. 8 (11) states that "Congress shall have the power . . . to declare war." Observed James Madison: the "fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature."

In fact, the Founders gave other important war-making powers to Congress as well, including raising an army, approving military expenditures, ratifying treaties, setting rules of war and issuing letters of marquee. The Constitution only made the president commander-in-chief of the military, which primarily empowered him to manage wars authorized by Congress.

Alexander Hamilton, perhaps the constitutional convention’s strongest fan of executive power, nevertheless called the commander-in-chief the “first general and admiral” of the armed services. The president’s authority, said Hamilton, was "in substance much inferior to” that of Britain’s king, the model against which the convention delegates were reacting. The president’s power “would amount to nothing more than the supreme command and direction of the land and naval forces . . . while that of the British king extends to the declaring of war."

The Framers did change “make” to “declare” to highlight the fact that the president could respond to foreign attack. Contrary to the claims of today’s fans of presidential war making, however, the Founders did not intend to limit the legislature’s power to noting that the president had started a war.