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Wednesday, March 23, 2011

Impeaching Obama Over Libya -- An Incorrect Solution to the Wrong Problem

As much as I like Dennis Kucinich, I've got to disagree with him -- the president not only shouldn't be impeached over what amounts to an undeclared war in Libya, but he can't be impeached for it. Rep. Kucinich is just barking up the wrong tree here.

Talking Points Memo:

KucinichA number of Democratic and Republican lawmakers are concerned about the White House's air assault on Libya, but Rep. Dennis Kucinich (D-OH) raised the rhetoric to 11 on Monday, suggesting President Obama should be impeached.

"President Obama moved forward without Congress approving. He didn't have Congressional authorization, he has gone against the Constitution, and that's got to be said," Kucinich said in an interview with Raw Story. "It's not even disputable, this isn't even a close question. 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."


Change "cannot be made" to "should not be made" and he's got a point. The president should not have the power to wage war alone. But the fact is that he does and, if Kucinich wants to remove that power, he'd be much better off suing the president. Impeachment will never even get off the launch pad, but a suit challenging the law giving the president the power may very well strike that law down.

At issue is the War Powers Resolution, more commonly referred to as the War Powers Act, which gives the president the power to wage war first and get congressional approval for it later.

Specifically, the resolution allows the president to order military action and report that action to congress within forty-eight hours -- something the president has done. This action may then go on for sixty days without congressional approval and, if the approval doesn't come, then the "sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces." So really, ninety-two days altogether, because we know a determined White House can cook up reasons to keep a war going for the additional month.

So, if Obama went beyond that ninety-two-day window on his own, then you'd have an impeachable crime. As it is now, Obama is simply obeying the law. Legally, the constitutionality of that law is a moot point, since it hasn't been challenged in court. Unless it's struck down -- even if it's plainly unconstitutional -- it is enforceable law and the president can't be faulted (at least, not in a legal sense) for obeying it. Impeachment calls for "high crimes and misdemeanors" on the part of the president and, while the definition of "high" may be up for grabs, the definition of "crimes and misdemeanors" can -- and should -- be assumed to include actual breaches of law.

Which is why I suggest a court challenge to the law itself. Article one, section eight of the US Constitution gives congress, not the president, the power to "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." Then-President Richard Nixon vetoed the resolution over constitutional concerns, but the veto was overridden by congress. As it stands now, it is law. And wishing things were otherwise does not make them so. A court can strike it down or congress can repeal it. This congress, with one chamber made up of war-happy militarists, would never repeal it. Having the courts declare it unconstitutional seems like the only realistic route. Unfortunately, this Supreme Court is way too comfortable with expanded executive powers, but maybe the fact that it's Obama's actions, not Bush's, that are being questioned will knock the wind out of their judicial activist sails.

So, are Obama's actions in Libya illegal and Bush-like in any other sense? Not if you ask middle east expert Juan Cole. Cole spells out ten key differences between Iraq and Libya, laying out real world legal, diplomatic, and humanitarian reason for the no-fly zone. Cole is definitely not a foreign policy hawk, so his arguments are clear-eyed and persuasive. In any case, it's clear that this is not Iraq all over again.

No matter how you feel about military action in Libya (and for myself, I'm torn -- even more so after reading Juan Cole's piece), seeking impeachment means following a dead end street that leads in the wrong direction anyway. Even if it was possible and was ultimately successful, the underlying problem --the War Powers Resolution -- would still exist and another president would eventually use it. The problem isn't the president, the problem is the law.

That law has to go, not the president obeying it.


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