(CNSNews.com) - While in Brazil in March 2011, President Barack Obama gave a 492-word speech—in which he used the personal pronoun “I” nine times—to announce he had personally decided to order U.S. military intervention in Libya’s civil war in order to protect Libyans and enforce what he called “the writ” of the international community.
The U.S. Congress did not authorize Obama to use the U.S. military to intervene in Libya as would have been in keeping with Article 1, Section 8 of the U.S. Constitution as understood by James Madison, George Mason, George Washington--and long-time Library of Congress constitutional scholar Louis Fisher.
“Today I authorized the Armed Forces of the United States to begin a limited military action in Libya in support of an international effort to protect Libyan civilians,” said Obama from Brasilia.
“In this effort, the United States is acting with a broad coalition that is committed to enforcing United Nations Security Council Resolution 1973, which calls for the protection of the Libyan people," said Obama. "That coalition met in Paris today to send a unified message, and it brings together many of our European and Arab partners.
“So we must be clear: Actions have consequences, and the writ of the international community must be enforced," said Obama. "That is the cause of this coalition."
Obama emphasized that in making his personal decision to order the U.S. military to intervene in Libya’s civil war, he had not acted lightly but had carefully thought through consequences of his decision.
“I am deeply aware of the risks of any military action, no matter what limits we place on it," Obama said. "I want the American people to know that the use of force is not our first choice and it’s not a choice that I make lightly. But we cannot stand idly by when a tyrant tells his people that there will be no mercy, and his forces step up their assaults on cities like Benghazi and Misurata, where innocent men and women face brutality and death at the hands of their own government.”
Article 1, Section 8, Clause 11 of the U.S. Constitutions says: “Congress shall have the power … To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”
In the draft of the Constitution, the language of this clause had originally said Congress shall have the power “to make war….” However, James Madison and Elbridge Gerry recommended amending it so that it would say Congress had the power to “declare” war. They did this because they wanted to make clear that the only time the president could use military force without prior authorization from Congress was to protect America against a sudden attack.
“Mr. Madison and Mr Gerry moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks,” Madison wrote in his own notes on the Constitutional Convention.
George Mason heartily agreed with Madison’s and Gerry’s amendment.
“Mr. Mason was agst giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it,” Madison recorded in his notes. “He was for clogging rather than facilitating war; but for facilitating peace. He preferred ‘declare’ to ‘make.’”
President George Washington--who had been commander in chief of the Continental Army, who presided over the Constitutional Convention, and who was constantly aware that as the first elected chief executive of the United States he was setting important precedents for how the chief executive must behave in office—scrupulously deferred to the war power of Congress, as ratified in the Constitution and as explained by Madison.
In 1793, for example, when the Creek Nation was causing problems in South Carolina, President Washington explained to the governor of that state why he would not unilaterally order military intervention against them.
“The Constitution," Washington wrote, "vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure."
Louis Fisher, who served for four decades as a constitutional scholar at Library of Congress, wrote “Presidential War Power,” a definitive study of Article 1, Section 8, Clause 11. In a June 15, 2011 interview with CNSNews.com, Fisher said that Obama’s unilateral move to use military force in Libya without prior congressional authorization was a “grave offense” against the Constitution.
“I am not going to recommend that the House Judiciary Committee hold impeachment hearings, but I would like members of Congress and the public to say that nothing would be more impeachable than a President who takes the country to war without coming to Congress, who does it unilaterally,” Fisher told CNSNews.com.
“So, I would like people to be educated, including members of Congress, to be educated that that is a very grave offense,” said Fisher.
Fisher rejected the notion that the U.N. Security Council—rather than the U.S. Congress—could authorize the president to use military force.
“He [Obama] said I have authorization from the Security Council. It is not authorization under U.S. constitutional law,” said Fisher.
“First of all, I would like to make it clear that in the U.N. Charter, you cannot have the president and the Senate through the treaty process--the UN Charter or NATO--you cannot have those two actors take the power of Congress and the House of Representatives and give it to either the Security Council or to NATO countries,” said Fisher.
“And I think even people who read presidential power broadly know that that is not possible,” he said.
“You cannot use a treaty to amend the Constitution,” Fisher said.
In his speech from Brazil announcing that he ordered the U.S. military to intervene in the Libyan civil war, Obama said that he had consulted with some congressional leaders about his decision and also that he was “proud” to be acting as part of a “coalition” to “uphold the mandate of the international community.”
“I've acted after consulting with my national security team, and Republican and Democratic leaders of Congress,” said Obama.
“I'm also proud,” said the American president, “that we are acting as part of a coalition that includes close allies and partners who are prepared to meet their responsibility to protect the people of Libya and uphold the mandate of the international community.”