This blatant law breaking sets the current administration apart from even George W. Bush’s extraordinary presidency. Jack Goldsmith, who headed the Justice Department’s Office of Legal Counsel early in the Bush years, observed: “this appears to be the first time that a president has violated the War Powers Resolution’s requirement either to terminate the use of armed forces within 60 days after the initiation of hostilities or get Congress’s support.”
President Bill Clinton bombed Serbia for nearly three weeks after the deadline, but at least he could argue that Congress signaled its implicit approval of the war by voting continued funding. Congress has not done so with Libya.
Libya is a war. The U.S. leads a military alliance that has mounted two months of attacks on another nation’s government installations and military units. American bombs or drones have been killing Libyan personnel and destroying Libyan equipment every week for two months. Washington’s oft-expressed, informal objective is regime change, with strikes targeting the foreign leader and killing his family members. The fact that U.S. participation is modest does not change the character of the action. Libya is a war.
The Founders would accept no excuse. Columbia law professor John Bassett Moore wrote: “There can hardly be room for doubt that the Framers of the Constitution when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace.”
President Obama likes to channel Abraham Lincoln. Before becoming president, the latter lauded the Framers for understanding war “to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”
Another good role model would be Dwight Eisenhower. He observed: "I am not going to order any troops into anything that can be interpreted as war, until Congress directs it." George Washington, another chief executive with military experience, wrote: “no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”
Nearly four years ago candidate Obama declared: “No more ignoring the law when it’s inconvenient.” Today President Obama should obey the law. If he doesn’t, congressional Republicans and Democrats alike should hold him accountable. With war having seemingly become a permanent condition, America desperately needs to revive a constitutional provision that Thomas Jefferson rightly called a “check to the dog of war.”