Impeach the President?

That was the left's cri de guerre when George W. Bush, who did have Congressional authorization, was conducting lawful wartime operations in Iraq and Afghanistan. Thursday's Air Force Times claims that U.S. piloted aircraft are conducting strike sorties in Libya, despite White House claims that our role is merely supportive. This is the fig leaf used by the administration to claim that we are not "at war." The State Department's top lawyer (pictured) was questioned by the Senate Foreign Relations Committee:

That view was echoed by the State Department’s top legal advisor, Harold Koh, who testified before the committee.

“We are far from the core case that most members of Congress had in mind when they passed the [War Powers R]esolution in 1973. They were concerned then about no more Vietnams. But we do not believe that the 1973 Congress intended that its resolution should be construed so rigidly to stop the president from directing supporting action in a NATO-led, [U.N.] Security Council-authorized operation [in Libya] with international approval," he said.

Note the use of the term "supporting action." However, the Air Force Times article discusses the fact that Air Force F-16's have been deployed in theater. F-16 are fighters are primarily used in air-to-air combat and but also in air-to-surface strikes. Further, here is what the AFRICOM had to say through it's public affairs office:

“U.S. aircraft continue to fly support [ISR and refueling] missions, as well as strike sorties under NATO tasking,” AFRICOM spokeswoman Nicole Dalrymple said in an emailed statement. “As of today, and since 31 March, the U.S. has flown a total of 3,475 sorties in support of OUP. Of those, 801 were strike sorties, 132 of which actually dropped ordnance.”

F-16CJ Falcon taking off for a "supporting mission."

Over 800 strike sorties, 132 bombing runs, but we're not at war Mr. Koh? If the President is going to blatantly ignore the war powers resolution and the constitution, what practical limit is there on his power?

Libya and Obama

I am loathe to comment on foreign policy and the conduct of war on this blog because it has not been central to the themes I wish to espouse. However, we must remember the centrality of war to the state and the fact that war has been used throughout history to expand its power.

Sun Tzu in the "Art of War," in the section titled Laying Plans writes:

1. Sun Tzu said: The art of war is of vital importance to the State.
2. It is a matter of life and death, a road either to safety or to ruin. Hence it is a subject of inquiry which can on no account be neglected.
3. The art of war, then, is governed by five constant factors, to be taken into account in one's deliberations, when seeking to determine the conditions obtaining in the field.
4. These are: (1) The Moral Law; (2) Heaven; (3) Earth; (4) The Commander; (5) Method and discipline.
5. The Moral Law causes the people to be in complete accord with their ruler, so that they will follow him regardless of their lives, undismayed by any danger.
6. 
   
7. Heaven signifies night and day, cold and heat, times and seasons.
8. Earth comprises distances, great and small; danger and security; open ground and narrow passes; the chances of life and death.
9. The Commander stands for the virtues of wisdom, sincerely, benevolence, courage and strictness.

With regards to the situation in Libya, it is now clear that the effort has crossed the line into war. The President is undermining the constitution by failing to make an account of the effort and his failure to invoke the War Powers Act. He has sacrificed a virtue that was important to his election, a pledge to conduct war making in an above board manner consistent with the constitution. Obama has therefore de-legitimized his claim to moral authority. He claimed during the campaign that he showed the good judgment to be against, that was, in his words,

A dumb war. A rash war. A war based not on reason but on passion, not on principle but on politics.

We must ask how the war in Libya differs?

Here is what the War Powers Resolution (I have been calling it the War Powers Act) states:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Clearly, our involvement in Libya has proceeded to a level which falls within the meaning of this law. Speaker Boehner should call upon the President to seek the authorization for the actions he is taking. Otherwise, the Republicans should enjoin the Department of Defense from funding the operations in Libya in the next budget bill.

Libyan War Powers

As operations in Libya drag on, the President's lawyers have taken the position that the action in Libya is "not a war" that would require the consent of Congress under the constitution and the war powers act. There is some historical merit to this claim, in the opinion of Volokh.com writer Ilya Somin. However, I also fully agree that if operations do not end soon, the President will be in violation of the law. The only reasonable justification for the action is humanitarian defense of innocent civilians. Once that aim is achieved, the U.S. must withdraw, or the President go to Congress to obtain war powers.

Exit question: How will and how should Republicans vote if Obama asks for war powers for Libya? Don't answer all at once, because I think this is a tricky political question. I'll put my answer in the comments.