Attack by president
is not constitutional,
Senator Obama said

So President Obama’s mission to the shores of Tripoli violates Constitution


Is UN intervention in civil war valid?
Is it protecting or harming civilians?

A WALL Commentary



NATO warplanes in flight.

       Three years and three months before deciding to launch a military attack on Libya—without the approval of Congress—Barack Obama told The Boston Globe:

       Senator Obama’s remark was not a casual response to a question tossed out by a reporter. Presented in writing in December 2007, the sentence was part of a 201-word reply to one of a dozen questions. Nine other presidential candidates answered the question.

       It was, “In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress?” The questioner, Charlie Savage, added that he had in mind the bombing of suspected nuclear sites in Iran, which did not involve an actual or imminent threat to the U.S.

       The candidate said a president could constitutionally take military action on his own just in “instances of self-defense.” He noted that he had introduced S.J. Res. 23, which stated in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” (It expired in committee. But you may recall his assurance—while his opposition talked of bombing Iran—that he would “talk to Iran.”)

       By March 2011, two years into the Obama administration, the Constitution was forgotten. Our democracy’s chief executive of the laws dictated that intervening in Libya was necessary to protect its citizens (not ours, mind you) from the dictator Qadhafi. It would be a humanitarian effort. We would just order a “no-fly zone” in Libya, simply asserting the right to shoot down any Libyan plane flying in its own country. And Qadhafi must go. But no worry: we wouldn’t send ground troops.

       On March 19—eight years to the day after Bush Jr. invaded Iraq—humanitarian bombs of the U.S. and NATO began falling on Libya.

       Then on April 7, the general in charge, Carter Ham, told the Senate Armed Services Committee that U.S. ground troops might be contemplated. It would be part of an international force (and who do you suppose would provide the lion’s share?).

       Our third war in 9½ years was on—fourth, if you count Pakistan separately from Afghanistan.

       So where is the “change you can believe in”? To quote McClatchy Newspapers on March 9: “In a sharp break from his predecessor's approach, President Barack Obama has decided to wait for European and Arab support before intervening in Libya.”

       What “sharp break”? How much difference is there between “Hussein must go” and “Qadhafi must go”? A sharp break would have meant leaving to Congress the decision on whether or not to enter still another war—the way the founders of the Constitution intended it. But Obama could not wait for American support, only for “European and Arab support.”

       This site, WarandLaw.org, contains abundant evidence that the Constitution vested the power “to declare war“ (Article I, Section 8) exclusively in the legislature. The executive was to play no part in the decision. His military role was to be “nothing more than … first General and Admiral” once Congress chose to go to war—quoting Hamilton in The Federalist, 69. (See “The Founding Fathers on the Constitution’s War Power”; “Modern Commentators on the Constitution’s War Power”; and “Court Rulings Affirming the War Power of Congress.”)

       A popular belief has it that the War Powers Resolution, of 1973, undoes all that, permitting a president to wage war on his own for 60 days. But how could a mere statute supersede the Constitution, the supreme law of the land? It does not. In fact, the resolution itself says, in Section 8 (d), that nothing in it is intended to alter the constitutional authority of Congress or the president or grant him any new authority. And Section 2 (c) which is usually ignored, says that the president’s constitutional power to introduce armed forces into hostilities or situations of imminent hostilities is 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.

       None of those three conditions preceded the attack on Libya. Congress had not approved it and Libya had not attacked the United States. Yet Obama called it “consistent” with the War Powers Resolution. Rep. Dennis Kucinich (D-Ohio) called it “impeachable.”



CIA order? Saudi deal?

       Obama, who once taught constitutional law, should know about unconstitutional war—and his 2007 statement suggests that he did. What happened? Is a shrewd, cynical politician showing his true colors? Have we witnessed the typical corruption of power? Was he sold a bill of goods by allies? Is something else involved?

       Rep. Howard “Buck” McKeon (R-CA), chairman of the House Armed Services Committee, told reporters on April 4 that a resolution approving of the attack after the fact would likely fail in Congress and he had no plans to bring such a resolution to the House floor.

       Possibly Obama did not want to risk a congressional rejection of his Libya action before the fact—especially if he had already secretly authorized the action.

       The Reuters news agency reported on March 30 that within the past two or three weeks, Obama had secretly issued an order “authorizing” support for Libyan rebels by the Central Intelligence Agency. The news was attributed to four government sources.

       The White House spokesman Jay Carney refused to comment on “intelligence matters.” He stated, “I will reiterate what the president said yesterday: No decision has been made about providing arms to the opposition or to any group in Libya.”

       The story of Obama’s secret “finding” came to light as Obama and allied officials spoke openly of furthering their objective of toppling Qadhafi’s regime by possibly sending arms to its opponents. Such arms shipments would apparently transgress an arms embargo for Libya imposed by the Security Council on February 26. Covert action could also include training or funding insurgents, issuing propaganda, and fomenting a coup. It is all part of war and all outside the Constitution.

       We can wonder what Obama knows about those rebels. Remember that in 1979 the CIA under President Jimmy Carter secretly supported anti-Soviet rebels in Afghanistan—some of whom evolved into al-Qaeda.

       Rep. Michael B. Rogers (R-MI), chairman of the House Permanent Select Committee on Intelligence, expressed fear of supporting anti-American militants again. He told reporters on April 4 that he did not favor arming the Libyan rebels.

       As for that “Arab support,” how did Obama go about winning it? The online Asia Times reported on April 2 that Obama had made a deal with Saudi Arabia: He gave the go-ahead to the Saudis to invade Bahrain and crush the pro-democracy movement there in exchange for getting the Arab League to approve a no-fly zone. That account was attributed to two diplomats from different countries. Only 11 of 22 members were present for the league’s vote, at which two members, Algeria and Syria, voted no.

       According to the writer, Pepe Escobar, the Obama administration was selling a “crass geopolitical coup”—aimed at Libyan oil and a strategic African base—as a humanitarian operation to prevent “a hypothetical massacre.”

       He wrote that meanwhile, according to the president of the Bahrain Center for Human Rights, Nabeel Rajab, over 400 people in Bahrain were either missing or in custody. Some were “arrested at checkpoints controlled by thugs brought in from other Arab and Asian countries. They wore black masks in the street.”

       In his book The Audacity of Hope, Senator Obama scored the inconsistency of presidential choices of battles. “Why invade Iraq and not North Korea or Burma? Why intervene in Bosnia and not Darfur?”

       President Obama says of Libya, “Our military mission is narrowly focused on saving lives.” Why Libya and not Bahrain, Saudi Arabia, or Ivory Coast, Mr. President? The People’s Republic of China, a most-favored nation, regularly commits mass killings of its people, and not just protesters: Those adhering to the wrong beliefs are subject to arrest, torture, and murder—without a peep from you, let alone an attack. Why?

       Under your own orders, Mr. President, thousands of raids every year by planes, artillery, and drones in Afghanistan and Pakistan continually kill children, women, and civilian men—and you ignore all pleas to stop the massacres. Why?



UN & international peace

       The very first purpose of the United Nations, under Article 1 of the UN Charter, is “To maintain international peace and security.” The strife in Libya was intranational—that is, a civil war—until the U.S. and allies rammed Resolution 1973 (2011) through the UN Security Council on March 17 and, two days later, made the war international by invading the country.

       More specifically, Article 2(7) says, “Nothing in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter…. ” A proviso follows: “this principle shall not prejudice the application of enforcement measures under Chapter VII,” which deals with measures to maintain or restore “international”—not domestic—peace and security.

       The Council’s official count was ten “yes” votes (one more than necessary for approval), none voting “no,” and five delegates abstaining. If the Charter is interpreted strictly, a case can be made that the resolution was not validly adopted for reasons stated in the sidebar below. But the Charter has been misinterpreted for so long, the case is not likely to get far.

       Anyway, the resolution that has been used to justify the war in Libya says nothing of waging any war, let alone a war of conquest. It does not use the word “military” or any other martial term. It demands, first of all, a cease-fire. It “Authorizes Member States … to take all necessary measures … to protect civilians and civilian populated areas” and to enforce a ban on all flights in, to, or from Libya, except for humanitarian purposes. And it tightens sanctions on the Qadhafi regime that were imposed the month before..

       Ambassador Susan E. Rice of the U.S. said that the council was responding to the Libyan people’s cry for help and that the purpose was clear: to protect civilians. The Libyan people should decide Libya’s future, she stressed—after voting for intervention.

       Abstaining delegates from Brazil, Germany, India, and Russia feared unintended consequences. Maria Luiza Ruberio Viotti of Brazil warned of the military action’s “causing more harm than good to the very same civilians we are committed to protecting.” Peter Wittig of Germany said participants could be drawn into a protracted conflict, involving the region.

       Questions remained unanswered, said abstainers Manjeev Singh Puri of India, Vitaly Churkin of Russia, and Li Bao-dong of China, president of the Security Council for March, speaking for his government. Among answers needed (Puri and Churkin said) were details of enforcement. Puri pointed out that the UN secretary-general had appointed a special envoy, who had just visited Libya, and that the African Union was sending a panel to Libya to seek a peaceful end to the crisis. However, the Council did not wait to hear from them.

       Nor did the Council try to get the parties to seek a solution by any of a variety of peaceful means (Article 33, Charter); or wait for an investigation of the facts (Article 34); or call on the parties—not just one party—to comply with provisional measures (Article 40). It did impose sanctions (Article 41), but against just one party—whose downfall the U.S. president was advocating.

       On February 26, in response to reports of a crackdown on protesters in Libya, the Council had adopted Resolution 1970, imposing on Libya an arms embargo, a travel freeze, and a partial freeze of assets and referring the situation to the International Criminal Court. It established a new committee to monitor and coordinate sanctions, which would report on its work to the council within thirty days.

      Nineteen days later came the resolution paving the way for war.




Protecting civilians

      Now let’s see what the member states are really doing in Libya to “protect civilians” while preventing flights.

      The mission has followed an American tradition of presidential wars to save people by bombing them. The most notorious were Korea and Vietnam. The Libyan operation has been taking civilian lives in increasing numbers.

      Late in March, Bishop Giovanni Innocenzo Martinelli, the apostolic vicar of Tripoli, told the Reuters news agency and the Vatican’s news service that the air raids had taken lives of dozens of civilians in various areas of Tripoli. In the Tajhura area, he said, bombs collapsed a house, killing forty people.

      The bishop told the Euronews Television Channel that scores of casualties had been “confirmed to me by people who had lost loved ones because of these bombings.” Euronews said a raid on an ammunition dump at Mizda, about 110 miles south of Tripoli, had damaged a hospital and homes and wounded at least 13 civilians.

      A group of over 35 pro-Libyan Ukrainian, Russian, and Belarusian professionals, mostly physicians, in the country protested the bombings in a letter to Russia’s president (appearing on the Canadian web site GlobalResearch.ca). They said the bombing of Tripoli and other cities was aimed not only at the Libyan air defense, but also at military and even civilian infrastructure. An excerpt, translated and edited.  

       The Associated Press interviewed the family of an 18-month-old toddler who was fatally wounded in a raid by U.S. and NATO planes at around 6 a.m. on March 29. Their target was an ammunition dump about five miles away. The home was in the impoverished mountain village of Khorum, in an area of olive groves and grazing sheep, about 55 miles south of Tripoli. Other villagers were injured.

       The mother was quoted as saying, “The house shook and there was so much dust everywhere, we couldn’t see in front of us.” She rushed into the living room, where he had been sleeping on a mattress on the floor with his father, and saw that a hot piece of metal had pierced the baby’s face. She picked him up. “His blood was streaming down my arm. He was crying out, ‘Mama, Mama,’ reaching out with his hand to me.” A hospital treated him, but by nightfall he was dead.

       Yet U.S. and allied officials claimed they were using precision weapons and denied causing any civilian casualties.

       On March 31, NATO, the North Atlantic (not “North Africa”) Treaty Organization, officially took command of the Libya operation. Remember, it was supposed to enforce a “no-fly” zone—and by the way, aren’t the bombers breaching it?

       Rebels said that on April 2 a bombing by NATO-led aircraft in northeastern Libya killed at least 13 of them. Five days later, NATO bombed a tank convoy in the same region, killing at least five more rebels. A high brass admitted the latter “friendly fire” but refused to apologize, saying it was not known that rebels had tanks. Maybe NATO was also unaware that tanks could not fly.

       One more fact, purely incidental to the foregoing events, of course: Libya has the largest known oil reserves of any country in Africa.


Has UN Charter long
been misinterpreted?

      The United Nations Charter, as originally construed, upheld the principle of unanimity of the five permanent members of the Security Council.

      Had that principle been observed, the Libya resolution would not have been adopted, for China and Russia abstained from voting. They are two of the five permanent members. The other three are Britain, France, and the United States, all of which voted for the resolution.

      Article 27 (3) of the United Nations Charter says, “Decisions of the Security Council … shall be made by an affirmative vote ... including the concurring votes of the permanent members….” (Exceptions: procedural matters do not require big-five concurrence; moreover a permanent member that is a party to a dispute does not vote on pertinent decisions.)

      The noted Austrian legal scholar Hans Kelsen wrote, “The wording of Article 27, paragraph 3, hardly allows an interpretation other than that, if one or more of the representatives are not present or abstain from voting, no valid non-procedural decision can be taken.” 1

      That was the understanding of the big-five at the San Francisco conference that drew up the Charter in 1945. Wrote Liang Yuen-Li, member of the Chinese delegation to the conference and director of the UN’s Legal Department, 1945–1964: “… A strict view was taken of this requirement, and the agreement reached among these delegations was that the concurrence of the five permanent members should take the form of affirmative votes of all of them in favor of the decision.” 2

      A writing of Wellington Koo, celebrated Chinese diplomat, later to become judge of the International Court of Justice, supports that recollection: A written reply by the “Committee of Five” to questions on the effect of abstention “reveals that the interpretation given to the word ‘concurring’ by the Sponsoring Powers is such as to require the positive concurrence of all the permanent members….” Therefore (he indirectly quoted the committee as saying) absence or abstention from voting by a permanent member not a party to a dispute “would serve to block any action” by the Security Council in nonprocedural matters. 3

      The intention of the founders of the UN was soon forgotten after an action by the Soviet delegate at one of the Council’s earliest meetings: He said he disliked a resolution but would abstain from voting so as not to prevent its adoption. 4

      So many imitations followed that by 1947, the Council president, Syria’s delegate, could declare that “an abstention is not considered a veto.” 5 There were scattered protests for a while, e.g. from Argentina and Egypt, 6 but the revised interpretation prevailed in practice.

      It takes nine “yes” votes in the 15-member Council to approve a substantial resolution. So to accept the fiction that an abstention is a concurring vote is to recognize that a resolution can be adopted without a single permanent member voting for it. That happened on Dec. 15, 1973, when ten nonpermanent members pushed through Resolution 344, concerning a Mideast peace conference. China did not participate and the other four permanent members all abstained.

1.   Eduardo Jiménez de Aréchaga, Voting and the Handling of Disputes in the Security Council Carnegie Endowment for International Peace, 1950, p. 20.

2.   Ibid.

3.   Wellington Koo, Jr., Voting Procedures in International Political Organizations, Columbia University Press, 1947, p. 156.

4.   Sydney D. Baily, Voting in the Security Council, Indiana University Press, 1964, p. 69.

5.   Ibid.

6.   Jiménez, op. cit., p. 21.


April 18 , 2011