- The Washington Times - Monday, June 20, 2011

ANALYSIS/OPINION:

The absurd argument that there is no war in Libya should not stop Congress from defunding it. Moving against this unnecessary “limited kinetic action” using the power of the purse will return Congress to first principles that have been obscured by the arcane debate over the meaning of the War Powers Resolution.

Conservatives have questioned the propriety of the resolution since it was passed over President Nixon’s veto in 1973. The law’s “legislative veto” provision is probably unconstitutional, though it has not been tested in court. In June 1995, the Republican Congress nearly repealed the act, a fact which currently allows Mr. Obama’s defenders to charge that conservative opponents of the Libyan adventure are simply playing politics.

Defunding the Libyan war is a better, more constitutionally sound approach. The “power of the purse” was specifically assigned to Congress as a limit on the war-making prerogatives of the executive. It was an explicit and planned division of authority between those who carry out war and those who pay for it. As James Madison wrote in a debate over the Neutrality Proclamation of 1793, “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.”

Congressional activism in national security doesn’t always go well. In June 1973, anti-war Democrats attached a rider to the Supplemental Foreign Assistance bill barring funds from being spent “to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam and South Vietnam by United States forces, and after August 15, 1974, no other funds heretofore appropriated under any other act may be expended for such purposes.” In practical terms, this prevented America from fulfilling its legal and moral obligations under the Paris Peace Accords and set the conditions for the communist subjugation of South Vietnam as well as the “killing fields” in Cambodia. It was one of the most shameful episodes of American history.

The conflict in Libya is an unnecessary war of choice. It’s a needless expense in a time of record budget deficits, the outcome of which is less important than the destabilizing effect of the continued bloody stalemate imposed by the intervention. If the U.S. role in Libya is as limited as the White House argues, then NATO can surely carry on Operation Unified Protector without American support. Or perhaps President Obama can use his influence in the region to convince the Arab League to pick up the slack, since he argued that their call for a Libyan no-fly zone last March justified foreign intervention.

Breaking out of the framework imposed by the War Powers Resolution also means that Congress need not continue the bizarre debate with the White House over whether bombing another country constitutes “hostilities.” Before taking their indefensible stand that U.S. action in Libya was not warlike, Mr. Obama’s legal beagles should have consulted the Supreme Court case of Bas v. Tingy (1800). Justice Bushrod Washington wrote with the majority that it may be “safely laid down that every contention by force between two nations in external matters, under the authority of their respective governments, is not only war, but public war.” Instead, and by any definition, Mr. Obama is suffering a continuing public embarrassment.

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