Skip to comments.War Power: Obama's campaign in Libya is constitutional ( so says a Harvard Law Professor)
Posted on 03/22/2011 7:09:15 AM PDT by SeekAndFind
Several days into a campaign of air and sea strikes against Libya, I agree with many of the arguments from critics of the intervention: President Obama acted imprudently in committing American forces to a conflict with an ill-defined national security justification. It is unclear how, on balance, a third war in a Muslim country helps our foreign policy goals. It is uncertain that the intervention will produce a regime more to our liking than Qaddafi's. It is hard to justify military action in Libya while the United States does not use military force in the face of brutal crackdowns by allies elsewhere in the Middle East. And it was especially unwise not to explain this action to the American people in advance or to better consult with and seek formal authorization, or at least political support, from Congress.
But that said, I depart from the critics of the Libya action, and from Sens. Obama and Hillary Clinton themselves circa 2007, and from the academic writings of Legal Adviser to the State Department Harold Koh on this one point: I do not believe that the military action in Libya is unconstitutional.
Legal scholars disagree about the original meaning of the Constitution's conferral on Congress of the power "to declare war." Many contend it required Congress to formally approve all uses of U.S. military force abroad, save, as James Madison said at the Convention, in situations needed to "repel sudden attack." Others maintain the "declare war" clause provides more leeway, allowing the president to use force abroad as long as the force does not rise to the level of "war," whatever that means. Yet others argue that the framers meant simply to give Congress the authority to signal under international law a state of war;
(Excerpt) Read more at slate.com ...
For those who want to know who Jack Goldsmith is :
Jack Goldsmith, a professor at Harvard Law School, worked in the Bush administration from 2002 to 2004 and is a member of the Hoover Institution Task Force on National Security and Law. He blogs on national security law issues at www.lawfareblog.com.
I’m sorry, but Harvard has completely discredited itself as a source of Constitutional scholarship with the conferral of a PhD on Barry Hussein Soetoro Whateverhisnameis.
The “intellectual” elite are circling the Muslim's wagon.
I’d love to see his argument for Bush going into Iraq. Somehow I expect he wouldn’t have the same opinion.
How does this square with Senator Obama’s statement “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”?
Abama has a PhD? You may be confused.
“Even if we could definitively resolve this debate (the meaning of declare war in the constitution), which we can’t, it is unclear why original intentwhich in practice rarely determines contemporary constitutional meaning
I see, like whether one needs be a natural born citizen.
What a joke! When democrats go to war its OK, but when Republicans do its unconstitutional!
We should not be helping the rebels anywhere in the middle east.
Islamic fanatics killing each other is a good thing!
Sorry, he has a JD, you’re right.
Harvard Law Professor?
Not impressed, and haven’t been for decades/
I’d rather hear the opinion of a real-world, boots-on-the-ground, Community College Law professor, than that of a sheltered pussy, deluded in the rarefied air of “elite” academia.
ANY Community College.....
Harvard speak for, "let's muddy up the Constitutional water some more to keep the populace from having a clue as to what it really says." This practice has to stop. The Constitution is not a "living" document. It is what it is and it says what it is. I'm SICK to death of these "intellectuals" twisting our governing document into something it was never intended to mean for the sake of their progressive causes.
Just another case of Liberal projection. Obama just did everything the liberals accused Bush of with Iraq.
Bush had the overwhelming support of Congress.
Thank you, professor, for telling us the blatantly obvious.
Harvard hands those out like party favors.
I agree, it does not say this is a guidline document. I guess Libs feel just like they have new meanings for the 10 commandments, we can now do the same to the Constitution.
BTW, not only does it proscribe in the Constitution what declare war means, it is further amplified in the War Powers Act of 1973. Seems to me, a literal reading of that law puts (.)bama in violation.
Arguing about this yesterday, I wrote even if what he did is the right or moral thing to do (not sure about that but even ceeding that point), it is not the legal thing to do. We are a nation of laws, not what feels good or seems right, so while he may have done what he believed was just, he is in violation of his oath which is an impeachable offense and he should go or resign.
“The Terror Presidency: Law and Judgment Inside the Bush Administration” by Jack Goldsmith.
I haven’t read it. NYT, Huffington Post, Slate, and NPR liked it. Hmmmm.
Regarding the force ordered by Obama (in submission to the U.N), I would STILL like to know WHERE the immanent threat to this country was?
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