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Bruce Fein: Nothing in the Constitution permits US war in Libya

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay. In Washington on Thursday, June 16, President Obama delivered a 32-page report to John Boehner and Congress justifying the American involvement in the Libyan war that had been demanded by many members of Congress. And then John Boehner asked for it because Congress is supposed to declare war, not the White House, and there’s a 60-day term where–which a president can initiate some actions, and then a 30-day extension, and that’s about to run out. So, many members of Congress are not only saying that this had to be authorized by Congress, but not being so is illegal. A couple of congressmen, Dennis Kucinich and a Republican colleague named Walter Jones, have actually launched a lawsuit asking a federal judge to suspend or prevent the war–American involvement in the war continuing without congressional approval. Now joining us in Washington to dissect all of this is Bruce Fein. Bruce was associate deputy attorney general under President Reagan. He’s also author of the book American Empire: Before the Fall. Currently he’s a resident scholar for the Turkish Coalition of America and co-counsel for the Turkish American Legal Defense Fund. Thanks for joining us, Bruce.

BRUCE FEIN, AUTHOR: Thank you for inviting me.

JAY: And I should also add, you’ve worked with and been advisor to Ron Paul in the past. So, first of all, give us first an overview of what’s happening on this in Washington, and then we’ll kind of dig into your point of view.

FEIN: Alright. First, we need to understand the Constitution and the War Powers Resolution, which needs completeness. One, every single member of the Constitutional Convention, every single author of the Federalist Papers, everyone involved in creating the Constitution agree that only the Congress had the authority to initiate war. It was viewed as the crown jewel of the Constitution, because the Founding Fathers had witnessed from the beginning of time, executive branch–monarchs, emperors, and otherwise–initiating war for personal aggrandizement, obtaining power, because during war time the executive gets the secrecy, the taxes, the appointments, the glory, his footprints in the sands of time. And with that understanding of human nature, every single Founding Father explicitly stated only Congress can initiate war; one man, one group cannot initiate war. And that is the preservation of our republic. So this is not a question of whether there’s any room for debate about what the Constitution means. It is as clear as the provision for 35 years of age being the minimum for occupying the White House.

JAY: Do you recognize or agree, then, that President Obama, at least for that 60 days, and then the 30-day extension, is that portion legal so far up until [crosstalk] 90 days?

FEIN: No. I think that that reflects a misunderstanding or nonreading of the War Powers Resolution. It’s really important to actually read documents before you interpret them, like reading a book before you write a book review. And if you read the War Powers Resolution, it does not provide an automatic 60-day window for the president to initiate war, and then Congress has to come back and authorize it, and the president has 30 days to withdraw troops. Section 2 explicitly states three conditions, and three only, where the president can use the military offensively: one, a declaration of war; two, specific statutory authorization for war; or three, a response to an actual attack on the United States of America. There is no 60-day window. Those are the three conditions, and three conditions only, when the president can respond with any offensive use of the military. In addition, it says once the military is deployed, after 60 days the president has to come back and get another congressional authorization if he wants to continue the hostilities beyond that period of time. However, he is given 30 days after the 60 to withdraw the troops to ensure they’re not exposed recklessly to [incompr.] That’s what the War Powers Resolution says. And the president violated the War Powers Resolution when he went into Libya. He violated the War Powers Resolution when he obtained no congressional authorization after 60 days. And he’s violating it right now.

JAY: Okay. So, Bruce, the Obama administration would say that the reasons why he went in initially without congressional approval partly was the issue of urgency, that Benghazi was under threat, there might–. Let me–hold on. Let me finish the question.

FEIN: Paul, Paul–.

JAY: Bruce, Bruce, hang on. Bruce, let me finish the question. So, that Benghazi was under threat. There could have been a massacre in Benghazi. There were–many other countries agreed with that. The UN Resolution gets passed. So that initial involvement was dictated by the urgency of the situation. Is that constitutional?

FEIN: No, of course not. There’s nothing in the Constitution that says, well, you don’t have to comply if there’s an urgency. The urgency that was recognized was an actual or imminent attack on the United States where the president could respond, like Pearl Harbor. That and what the president has said in providing those excuses is a confession that he’s flouted the Constitution. The War Powers Resolution doesn’t say if you have an urgency and you think there’s going to be a massacre, then you can go ahead and act unilaterally. There are no exceptions. If you don’t like it, you can amend the Constitution. You can amend the War Powers Resolution. You just don’t by decree say, well, I think there is an emergency; I’ll flout the law. That is the end of the rule of law when that becomes [crosstalk]

JAY: Okay. So he submitted this 32-page document, and if I understand it correctly, ’cause I have not had a chance to review the 32 pages, but my understanding is the White House argument is that the action now is so limited–just air support, some logistical support–that it’s not really involved in a, quote, full-scale war. There’s some definition they’ve said to sort of reduce level of participation in hostilities. So does that not persuade you?

FEIN: No. I think I can summon the administration’s own secretary of defense, Mr. Gates, and testify before Congress, yeah, it would be an act of war if anyone shot a Tomahawk missile into New York City. And we’ve done a lot more than that into Libya. Just think of how inconceivable it would be in the United States not to treat another country that’s doing to us what we are doing to Libya is not war. And moreover it creates this paradox: if we’re not at war, then our killings are murder, because it’s war that makes killings legal. So they’re confessing to war crimes or murder if this is not war.

JAY: Now, what do you make of John Boehner’s position and some of the leadership of the Republicans and some of the other Republicans involved in this? Because many of them supported President Bush’s war in Iraq, which most international lawyers consider to have been illegal. It’s a bit rich, their position on this, don’t you think?

FEIN: Well, I think the richest position is the vice president’s–Joe Biden. In 2007, Mr. Biden in his presidential campaign stated unequivocally, if George W. Bush went to war in Iran without congressional authority, he would insist on the impeachment and removal of the president from office, because going to war without congressional authority is an impeachable offense–2007; 2008, on the campaign stump, Hillary Clinton and Mr. Obama both stating unequivocally, only Congress can authorize the initiation of war, President Bush cannot go to war in Iran without congressional authorization. So what is rich? Now they are in power, and they are doing the opposite, the exact opposite of what they said. They came into office with a fraud, because war is the most important decision any government makes, and those individuals–Biden, Clinton, Obama–lied to us.

JAY: Okay. I’m not presenting any argument against you on that. I think the facts on that are clear. But John Boehner, many of the Republican leadership, were gung ho on every move by the Bush administration, never critiqued any of the illegality of that administration. I guess the question I’m asking you more, ’cause I think what I just said you probably agree with (we’ve talked before): what’s going on inside the Republican Party that would push people like Boehner to take a position on this? ‘Cause I really doubt he would have without enormous pressure from inside his own party.

FEIN: Make two observations. Number one, at least President Bush did get congressional authorization to use force in Afghanistan. It’s called the authorization to use military force. And he did get a statute, the Iraqi War Resolution, that passed Congress, voted upon and approved by Joe Biden and Hillary Clinton, that authorized what he did in Iraq. Now, he violated many other provisions of law that caused me to call for his impeachment, like the Foreign Intelligence Surveillance Act, or committing torture, claiming that if he’s conducting war he can commit torture. But at least on the war issue he did get Congress to act. Now, why is Boehner doing what he’s doing? Because there is a more acute attack on President Obama in the form of the Kucinich amendment that would have required all military force to cease 14 days after the resolution. And in order to co-opt or to blunt the force of the Kucinich resolution, he offered his own. He was totally responsive. Without the Kucinich resolution, Mr. Boehner would have done nothing, because we are living in an era of empire, where the entire political culture is infected with this demand for domination for the sake of domination: make us risk-free; we can go anywhere in the world. And it’s both Republican and Democratic parties, and it’s throughout the entire political culture. And that’s why a president can commit impeachable offenses with impunity, as long as he says, I’m doing it in national security purposes, I’m doing it for benevolent reasons. This idea of American exceptionalism means anything that we touch turns to gold. You know, we’ll take civilizations that haven’t had democracy in 5,000 years and make them democrats. You know. And it’s this arrogance that is what I consider the corruption and the contamination of our whole politics today.

JAY: Thanks very much for joining us, Bruce.

FEIN: Thank you.

JAY: And thank you for joining us on The Real News Network.

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Bruce Fein is the founder of the American Freedom Agenda. He served in the US Justice Department under President Reagan and has been an adjunct scholar with the American Enterprise Institute, a resident scholar at the Heritage Foundation, a lecturer at the Brookings Institute, and an adjunct professor at George Washington University. He was an advisor to Ron Paul. Bruce is also the author of the book "American Empire: Before the Fall."