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WASHINGTON -- Members of Congress are discussing several mechanisms to cut off funding for U.S. military operations in Libya, arguing that since President Barack Obama did not obtain congressional authorization, he is essentially waging an unconstitutional war.
Rep. Tim Johnson (R-Ill.) is one of the lawmakers leading the charge. He says that not only does he believe Obama should first have consulted Congress, he opposes and would have opposed any U.S. military involvement in Libya.
"I think this, combined with our presence in Afghanistan and Iraq ... just elevates hatred toward America
Conducting military hostilities is a central tool for the exercise of the President's plenary control over the conduct of foreign policy.
In 1898, Acting Attorney General John K. Richards wrote:
The preservation of our territorial integrity and the protection of our foreign interests is intrusted, in the first instance, to the President. . . . In the protection of these fundamental rights, which are based upon the Constitution and grow out of the jurisdiction of this nation over its own territory and its international rights and obligations as a distinct sovereignty, the President is not limited to the enforcement of specific acts of Congress. [The President] must preserve, protect, and defend those fundamental rights which flow from the Constitution itself and belong to the sovereignty it created.
In 1995, we opined that the President "acting without specific statutory authorization, lawfully may introduce United States ground troops into Bosnia and Herzegovina . . . to help the North Atlantic Treaty Organization . . . ensure compliance with the recently negotiated peace agreement." Proposed Deployment of United States Armed Forces in Bosnia and Herzegovina. We interpreted the War Powers Resolution to "lend support to the . . . conclusion that the President has authority, without specific statutory authorization, to introduce troops into hostilities in a substantial range of circumstances."
In Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization (1980), we stated that our history is replete with instances of presidential uses of military force abroad in the absence of prior congressional approval. This pattern of presidential initiative and congressional acquiescence may be said to reflect the implicit advantage held by the executive over the legislature under our constitutional scheme in situations calling for immediate action. Thus, constitutional practice over two centuries, supported by the nature of the functions exercised and by the few legal benchmarks that exist, evidences the existence of broad constitutional power.
On at least 125 such occasions, the President acted without prior express authorization from Congress. Such deployments, based on the President's constitutional authority alone, have occurred since the Administration of George Washington. See David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789-1791, 61 U. Chi. L. Rev. 775, 816 (1994)
The Congressional Research Service reported that the Obama administration had been preparing to relay military aid to Libya this year. In a report by Christopher Blanchard and Jim Zanotti, CRS cited plans to provide military education and training for Col. Moammar Gadhafi's security forces.
The report said military education funds for Libya were first requested by the Bush administration for fiscal 2009, but was not provided. The report cited a 2009 State Department report on continuing rights abuses in Libya: ........
CRS, which provides background to members of the House and Senate, said Libyan participation in the U.S. military education program would have paved the way for additional training.
Instead, Obama expanded military cooperation with Libya during his first year in office, the report said. CRS said the White House requested the Libya be eligible to receive weapons under the U.S. Foreign Military Financing program.
This month, the administration has reported that the United States suspended military cooperation with Libya, Middle East Newsline reported. Defense Secretary Robert Gates said the cooperation was not significant, but did not elaborate. ....
"For FY2010, the Obama administration requested $350,000 in International Military Education and Training funding for Libya to 'support education and training of Libyan security forces, creating vital linkages with Libyan officers after a 35-year break in contact,' " the report, titled "Libya: Background and U.S. Relations," said. ......
In 2006, Washington lifted its arms embargo on Libya. While the United States was said to have banned lethal weapons for export, European Union states have offered Tripoli a range of aircraft and other combat platforms.