The Boy from Gitmo

Eight years ago, an [REDACTED] Afghan kid—some say he was [REDACTED] years old, others say he was 12—was grabbed in a Kabul marketplace after a grenade attack on two American soldiers. He was interrogated, [REDACTED], and then taken to Guantánamo. He spent his teenage years there, seven in all, confined in a [REDACTED] [REDACTED] [REDACTED] with the supposed "worst of the worst." But then, thanks ot the superhuman efforts of his defense team and one intense [REDACTED] military lawyer, the government's case against him disintegrated. Now he's back in Afghanistan, free as a badly damaged bird, in a [REDACTED] country he barely recognizes, wondering where you go when you grew up nowhere

This is a story about lost and broken things, the rubble from which the phoenix-in this case a C-130 military transport-rises over the Caribbean Sea on a spotless day in September 2008. From 30,000 feet, the surface of the water glitters below like jagged glass, shooting spears of light. The plane stalks east, running parallel to the northern coast of Cuba twenty miles off. On board, Major Eric Montalvo is wedged in a seat, thinking, What the fuck have I gotten myself into now?

A month ago, he'd been working at Parris Island, South Carolina, capping a distinguished career during which he'd won more than 95 percent of his cases. He'd recently bought a big house with a huge kitchen and a fountain out back for his wife and two boys-and had begun to turn his attention to finding a civilian job. And then an e-mail pinged his in-box. Copied to a couple of hundred Marine lawyers, it called for applications to help with the military commissions trials at Guantánamo. Montalvo responded impulsively, stirred by the call to duty. Within a couple of hours, he received word. His retirement had been pulled: He was going to Washington, D.C.

The timing was terrible. The real estate market was imploding, the house couldn't be sold, and Montalvo was forced to leave his family for an indeterminate amount of time. Still, there was worse to come. When he found out he'd been placed on the defense side-when he realized that he'd actually be defending the terrorists-he was stricken. The phone started ringing, colonels he knew on the line repeating the same mantra: "This isn't going to be good for your career, Major." Then the call with his parents. On September 11, Montalvo's uncle Tony had responded with his Harlem fire company to Ground Zero, and Montalvo's parents believed it was black lung that killed him not long after.

Please don't do this, Montalvo's mother told him.

Now the transport sweeps wide around Cuba's eastern tip, an arid land of organ-pipe cacti and big loping rodents called banana rats. Below is Guantánamo Bay itself (a flume of blue water mushrooming inland, teeming with turtles and parrot fish) and then the naval base, a scattering of roads, buildings, and low-slung homes that accommodate the 6,000 troops here. Montalvo's first impression is how foreboding the rocky shoreline seems, how moonlike the landscape. A Caribbean Alcatraz. Somewhere down there, too, are the cages that contain "the worst of the worst"-as Donald Rumsfeld labeled them-alleged Al Qaeda terrorists. Montalvo's stomach burns a little with the thought that he might have to collude with any of them, in any manner. A self-described superpatriot and son of blue-collar parents (mother a hairdresser, father a cargo man for AeroMexico), he grew up in Queens, a skinny Puerto Rican scrapper, then joined the Marines at 18 and morphed into "Mad Dog," his gonzo jarhead persona. Soon he was touted for Officer Candidates School and afterward went on to law school at Temple, emerging with gravitas as this slightly fattened-up (five feet nine, 220 pounds) lawyer of laser logic and indignant rage, trimmed beard flecked gray, and bad attorney's back.

When he first found out he'd been assigned to the defense side, he went and spoke to Colonel Morris Davis, the chief prosecutor for the commissions at the time, and the colonel asked Montalvo if he thought he could handle it. The job would get very personal, he said, but it was also the most meaningful kind of work because it was all about the Constitution. And this is how Montalvo buttressed himself in the face of so many doubters, repeating it back to them. "If I'm going to fight the fight for America," he'd say, "dead center on the Constitution is where I want to be."

He soon finds himself on the top step of the military commissions building, gazing down on a makeshift tent city and sweating through his cammies in the heat. He's been assigned the separate cases of two detainees, and enters a small interrogation room where the first, a Yemeni named Ali al-Bahlul, is chained and shackled to the floor. The detainee is surprisingly lithe, a handsome man with close-cropped hair who speaks impeccable English. He's one of Osama bin Laden's former media operatives, most famous for having made a two-hour video celebrating Al Qaeda's attack on the USS Cole. It's one of the jihad movement's all-time greatest hits, and al-Bahlul is also among the most doctrinaire, having been locked away in solitary for years. As they sit face-to-face, al-Bahlul asks why the Marine is trying to be so accommodating. "Don't you know I'm your enemy?" he says. Montalvo responds that, legally speaking, he feels that a First Amendment argument can be made on his behalf, but al-Bahlul interrupts, jangling his chains. "Don't you know that if that door were opened and we both were out there free, I'd kill you?" Nothing has prepared Montalvo for this kind of venom, but his reaction is visceral. He leans forward and says, "Don't you know that if that door were open and we both were free, I'd kill you first?" When it's over, Montalvo leaves the room shell-shocked, thinking, Jesus, how can I defend that?

It's not just al-Bahlul. He feels it all around: that what's really being played out here is a clash of civilizations. Even the setting, the harsh sun and roiling ocean, evokes a desolation, the sense that in this otherworld there's been an allowance made for some unsayable human brutality. Eye for an eye. Montalvo goes back to his tent, gets some grub, sleeps in double sleeping bags because the air-conditioning blows an arctic frost all night. The next day he's introduced to his second client, Internal Security Number 900. The detainee is said to have committed an attack against two Special Forces soldiers in a marketplace in downtown Kabul, a brazen assault with a grenade that left the soldiers badly maimed but alive.

By Michael Paterniti

Page of 9 >

Read More http://www.gq.com/news-politics/newsmakers/201102/boy-from-guantanamo#ixzz1I36ZBICl

Obama Raises American Hypocrisy To A Higher Level

What does the world think? Obama has been using air strikes and drones against civilians in Afghanistan, Pakistan, Yemen, and probably Somalia. In his March 28 speech, Obama justified his air strikes against Libya on the grounds that the embattled ruler, Gadhafi, was using air strikes to put down a rebellion.

Gadhafi has been a black hat for as long as I can remember. If we believe the adage that “where there is smoke there is fire,” Gadhafi is probably not a nice fellow. However, there is no doubt whatsoever that the current US president and the predecessor Bush/Cheney regime have murdered many times more people in Iraq, Afghanistan, Pakistan, Yemen and Somalia than Gadhafi has murdered in Libya.

Moreover, Gadhafi is putting down a rebellion against state authority as presently constituted, but Obama and Bush/Cheney initiated wars of aggression based entirely on lies and deception.

Yet Gadhafi is being demonized, and Bush/Cheney/Obama are sitting on their high horse draped in cloaks of morality. Obama described himself as saving Libyans from violence while Obama himself murders Afghans, Pakistanis, and whomever else.

Indeed, the Obama regime has been torturing a US soldier, Bradley Manning, for having a moral conscience. America has degenerated to the point where having a moral conscience is evidence of anti-Americanism and “terrorist activity.”

The Bush/Cheney/Obama wars of naked aggression have bankrupted America. Joseph Stiglitz, former chairman of the President’s Council of Economic Advisers, concluded that the money wasted on the Iraq war could have been used to fix America’s Social Security problem for half a century. http://www.guardian.co.uk/world/2008/feb/28/iraq.afghanistan Instead, the money was used to boost the obscene profits of the armament industry.

The obscene wars of aggression, the obscene profits of the offshoring corporations, and the obscene bailouts of the rich financial gangsters have left the American public with
annual budget deficits of approximately $1.5 trillion. These deficits are being covered by printing money. Sooner or later, the printing presses will cause the US dollar to collapse and domestic inflation to explode. Social Security benefits will be wiped out by inflation rising more rapidly than the cost-of-living adjustments. If America survives, no one will be left but the mega-rich. Unless there is a violent revolution.

Alternatively, if the Federal Reserve puts the brake on monetary expansion, interest rates will rise, sending the economy into a deeper depression.

Washington, focused on its newest war, is oblivious to America’s peril. As Stiglitz notes, the costs of the Iraq war alone could have kept every foreclosed family in their home, provided health care for every American child, and wiped out the student loans of graduates who cannot find jobs because they have been outsoured to foreigners. However, the great democratic elected government of “the world’s only superpower” prefers to murder Muslims in order to enhance the profits of the military/security complex. More money is spent violating the constitutional rights of American air travelers than is spent in behalf of the needy.

The moral authority of the West is rapidly collapsing. When Russia, Asia, and South America look at Europe, Australia and Canada, they see American puppet states that contribute troops to the aggressive wars of the Empire. The French president, the British prime minister, the “president” of Georgia, and the rest are merely functionaries of the American Empire. The puppet rulers routinely sell out the interests and welfare of their peoples in behalf of American hegemony. And they are well rewarded for their service. One year out of office former British prime minister Tony Blair had a net worth of $30 million.

In his war against Libya, Obama has taken America one step further into Caesarism. Obama did Bush one step better and did not even bother to get congressional authorization for his attack on Libya. Obama claimed that his moral authority trumped the US Constitution. The hypocrisy reeks. How the public stands it, I do not know:
“To brush aside America’s responsibility as a leader and--more profoundly--our responsibilities to our fellow human beings under such circumstances would have been a betrayal of who we are. Some nations may be able to turn a blind eye to atrocities in other countries. The United States of America is different. And as president, I refused to wait for the images of slaughter and mass graves before taking action.”

This from the Great Moral Leader who every day murders civilians in Afghanistan and Pakistan and Yemen and Somalia and now Libya and who turns a blind eye when “the
great democracy in the Middle East,” Israel, murders more Palestinians.

The American president, whose drones and air force slaughter civilians every day of the year went on to say Libya stands alone in presenting the world with “the prospect of violence on a horrific scale.” Obviously, Obama thinks that one million dead Iraqis, four million displaced Iraqis, and an unknown number of murdered Afghans is just a small thing.

The rest of Obama’s speech showed a person more capable of DoubleSpeak and DoubleThink than Big Brother and the denizens of George Orwell’s 1984.

How does a person as totally absurd as Obama expect to be taken seriously?

By Paul Craig Roberts

http://www.informationclearinghouse.info/article27783.htm

What Exactly Is a 'Limited War?'

The US often proclaims the war they are launching to be limited in scope and time. Yet often these wars drag on as troops get bogged down, focus or aims of war change, and the people who welcomed US troops as liberators or defenders, turn on them as occupiers. Days turn into weeks, weeks to months and wham suddenly all the TV channels are doing 10 year anniversary pieces. Just over one week into the Libya war and there is already talk of weeks, not days. NATO predicts 3 months while the Pentagon thinks it will take significantly longer. So will this become an odyssey of death and destruction.

Obama Tries, Without Success, To Explain An Undeclared War

Barack Obama delivers a speech at the National Defense University in Washington, DC about the UN-sanctioned intervention in Libya, 28 March 2011. Despite the calm and measured argument, the problem is that presidents are not supposed to start wars, especially wars of whim that are offensive rather than defensive in nature. It's actually written in the Constitution. (Photograph: Jim Young/Reuters)

President Obama finally got around to speaking to the American people about the fact that he has led the country into a third war.

The speech was, to no one's surprise, ably delivered. The president spoke with emotional and rhetorical power of how he felt there had been a need to intervene in order to prevent "a massacre that would have reverberated across the region and stained the conscience of the world." He explained how there are times "when our safety is not directly threatened, but our interests and values are." He decried the temptation "to turn away from the world" and promised that "wherever people long to be free, they will find a friend in the United States."

Those are noble sentiments, well expressed.

Unfortunately, he also spoke about how he had initiated the way on his own: "I ordered warships into the Mediterranean." I refused to let that happen." "I authorized military action..." "At my direction..."

The problem is that presidents are not supposed to start wars, especially wars of whim that are offensive rather than defensive in nature. That was the complaint against George W. Bush when he failed to obtain a declaration of war before ordering the invasion of Iraq, that is the ongoing complaint against Obama for maintaining the undeclared wars in Iraq and Afghanistan. And that is the legitimate and necessary complaint against Obama now, a complaint that should come not just opponents of the military intervention but supporters who want that intervention to be lawful and legitimate.

The president did not address the fact that the Libyan adventure is an undeclared war. In fact, he barely mentioned the Congress that is supposed to declare wars, saying only: "And so nine days ago, after consulting the bipartisan leadership of Congress, I authorized military action to stop the killing and enforce U.N. Security Council Resolution 1973."

But the Constitution does not discuss "consulting the bipartisan leadership..." It says that: "Congress shall have the power... to declare war, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

That was the point that Congressman Dennis Kucinich, D-Ohio, made with regard to the speech.

Suggesting that "President Obama owes the nation an explanation as to why he had time to consult with 15 members of the UN Security Council, 22 members of the Arab League, and later, with 28 members of NATO, to garner support for an attack with Great Britain and France, but had no time to come to the United States Congress for prior authorization before attacking Libya," Kucinich argued that: “Article 1, Section 8 of the United States Constitution is very clear. It is Congress that determines when our nation goes to war. President Obama superseded that authority and bought a new war for the American people without Congressional approval. We must know what it will cost, how long it will last, what is the end game, and when will NATO -- whose military bills we pay -- get out."

Kucinich continued: “President Obama’s failure to come to Congress, as required by the Constitution, left us without the opportunity to have a full and ample debate on the merits of military intervention in Libya. As such, I intend to offer a bipartisan amendment to cut off funds for U.S. participation in the war to the next funding measure. I want to thank Representatives Ron Paul (R-TX), Walter Jones (R-NC), Tom McClintock (R-CA), Pete Stark (D-CA) and Lynn Woolsey (D-CA) for their co-sponsorship of the amendment."

Kucinich has been a steady and outspoken critic of the president's failure to seek a declaration of war.

But, after Obama spoke, other members of Congress voiced their objections.

Congresswoman Tammy Baldwin, D-Wisconsin, issued a statement immediately following the president's speech, which began: “I oppose the current engagement of U.S. military forces in Libya. Our nation cannot afford a third war and Congress has not authorized it."

Echoing Kucinich, she said: "The Constitution gives Congress the authority to declare war. Defense Secretary Gates has publicly stated that Libya is not a vital interest of the United States. Congress must debate and act on this new military engagement in Libya."

Baldwin also raised other concerns: "For a decade now, the U.S. has been fighting wars in Iraq and Afghanistan. We have spent nearly a trillion dollars of borrowed money and lost nearly 6,000 American lives. Thousands more servicemen and women have suffered serious, life-altering injuries. Even as they support these wars with no clearly defined mission or exit strategy, House Republicans are seeking deep cuts in job creation efforts, veterans’ services, health care, education, and transportation. These are misguided priorities."

"Our troops must be brought home safely and soon from Afghanistan and Iraq; and Congress must return its focus to creating jobs, educating our children, and ensuring access to quality, affordable health care for all Americans,” concluded Baldwin.

By John Nichols

http://www.thenation.com/blog/159526/obama-tries-without-success-explain-undeclared-war

Libya: “Hidden Agendas” and “Vital Interests”

Secretary of State Clinton is in London today at a conference with other governments participating in the bombing of Libya, including those of Britain, France and Qatar. Based in Sweden, Oberg, who is director of the Transnational Foundation for Peace and Future Research, recently wrote the piece “Libya: Contradictions, Foolish Assumptions and Flawed Humanism.”

PEPE ESCOBAR, Skype: pepeasia
Escobar’s books include Obama Does Globalistan. His recent writings for the Asia Times are at: atimes.com.

He recently wrote the piece “There’s no Business Like War Business,” which states: “Lies, hypocrisy and hidden agendas. This is what United States President Barack Obama did not dwell on [in his speech last night] when explaining his Libya doctrine to America and the world. … It’s easy to identify who profits from the war in Libya: The Pentagon, the North Atlantic Treaty Organization, Saudi Arabia, Qatar, the ‘rebels,’ the French and al-Qaeda. But that’s only a short list of profiteers; control of an ocean of fresh water is crucial to the war mix and nobody knows who’ll end up getting the oil and the natural gas. … United Nations Security Council resolution 1973 has worked like a Trojan horse, allowing the Anglo-French-American consortium — and NATO — to become the UN’s air force in its support of an armed uprising. Apart from having nothing to do with protecting civilians, this arrangement is absolutely illegal in terms of international law.”

He also wrote the piece “Endgame: Divide, Rule and Get the Oil,” which states: “Odyssey Dawn is only happening because the 22-member Arab League voted to impose a no-fly zone over Libya. The Arab League — routinely dismissed in Western capitals as irrelevant before this decision — is little else than an instrument of the House of Saud’s foreign policy. Its ‘decision’ was propelled by Washington’s promise to protect the GCC [Gulf Cooperation Council] kings/sheikhs/oligarchs from the democratic aspirations of their own subjects — who are yearning for the same democratic rights as their ‘cousins’ in eastern Libya.

“This is exactly the same GCC, posing for Saudi Arabia that invaded Bahrain to help the Sunni al-Khalifa dynasty to crush the pro-democracy movement. … For Saudi Arabia this was a great deal; the perfect chance for King Abdullah to get rid of Gaddafi (the bad blood between both since 2002 is legendary), and the perfect chance for the House of Saud to lend a hand to a bewildered Washington.” [Brazil is one of a few non-Arab countries granted observer status at the Arab League.]

TOBY C. JONES, @tobycraigjones
Jones is an assistant professor of history at Rutgers University and author of the book Desert Kingdom: How Oil and Water Forged Modern Saudi Arabia. He said today: “While the United States has taken on a brutal dictator in Libya … its claims to be supporting Arab democratic movements elsewhere is belied by its policies in the Persian Gulf. Robert Gates remarked on Sunday’s Meet the Press that U.S. stands by its ally in Saudi Arabia and even justified a recent $60 billion arms deal to Riyadh. Meanwhile, Saudi Arabia has conspired to brutally repress a pro-democratic movement in Bahrain. Gates remarked that intervention in Libya was justified in part because it was not a ‘vital interest’ to the United States, while the Gulf is. The cost of our strategic relationships with the Gulf means more oppression, greater instability, and a potential escalation of hostilities with Iran. Perhaps it is time to rethink what is vital about our ties to brutal regimes in the heartland of oil.”

JAN OBERG, Skype: janoberg

http://www.accuracy.org/release/libya-hidden-agendas-and-vital-interests/

Kucinich: President Had Time to Consult with International Community, Not Congress?

Coincidental Timing of French, British War Games Points to Critical Lack of Information

WASHINGTON - March 29 - Congressman Dennis Kucinich (D-OH) today sent a letter to Members of Congress in support of his amendment to the next funding measure that would prohibit funds from being used for U.S. participation in the war in Libya. In the letter, Kucinich questioned how the Administration had a month to prepare for the war in Libya, consulting with the Arab League, the United Nations Security Council and the North Atlantic Treaty Organization (NATO), but did not have time to come to Congress to ask for an authorization for the use of force pursuant to Article 1, Section 8 of the Constitution. Kucinich raised questions about the lack of information provided to Congress concerning the war, citing the coincidental timing of a scheduled, French-British war game exercise and its similarity to the actual attack on Libya.

The full text of the letter follows:

Congress Must Protect Constitutional Authority as a Coequal Branch of Government, Cut off Funds for Libyan War

Dear Colleague:

As you consider supporting an amendment to cut off funds for the war in Libya, I want to call to your attention to the stark lack of information provided to Congress and the American people about the war.

Last night the President said it took one month to put together a response to the situation in Libya. During that time the President consulted with 28 member nations of NATO, 22 member nations of the Arab league and 15 members of the UN Security Council, ten of whom approved the resolution. There was also time for extensive coordination with France and Great Britain. The President had time to consult with the international community, but had no time to come to the United States Congress?

There is no question that the Administration should have followed the Constitution and received the approval of Congress before starting a war. Consulting with a few members is not the same thing as following the Constitutional requirements of Article 1, Section 8.

Further complicating the Administration’s failure to come to Congress prior to ordering an attack is the fact that our primary partners in the war against Libya, France and Great Britain, had, according to a French military website, planned certain war games which now may have significance.

On November 2, 2010 France and Great Britain signed a mutual defense treaty, which paved the way for joint participation in a military exercise called ‘Southern Mistral’ (www.southern-mistral.cdaoa.fr). While war games are not uncommon, the similarities between ‘Southern Mistral’ and ‘Operation Odyssey Dawn’ highlight just how many unanswered questions remain regarding our own military planning for Libya.

The ‘Southern Mistral’ war games called for Great Britain-French air strikes against an unnamed dictator of a fictional country, “Southland.” The pretend attack was authorized by a pretend United Nations Security Council Resolution. The ‘Southern Mistral’ war games were set for March 21-25, 2011.

On March 19, 2011, the United States joined France and Great Britain in an air attack against Muammar Gaddafi’s Libya pursuant to UN Security Council Resolution 1973.

Scheduling a joint military exercise that ends up resembling real military action could be seen as remarkable planning by the French and British, but it also highlights questions regarding the United States’ role in planning for the war. We don’t know how long the attack on Libya has been in preparation, but Congress must find out. We don’t know who the rebels really represent and how they became armed, but Congress must find out.

With so many unknowns, Congress’ only path to protect both the Constitution and the institution of government of the people is to cut off funds for the war in Libya. A cutoff of funds would require the President to follow the Constitutional process with respect to going to war. He would have to seek Congressional approval.

Otherwise, we will have given our tacit consent to a policy that undercuts Congress’ constitutionally-mandated role as a coequal branch of government. Moreover, since the Founders established Congress under Article 1 and the Executive under Article 2, Congress is first among equals, unless we refuse to be.

Please join me in cosponsoring an amendment to the next continuing resolution or omnibus appropriations bill that would prevent any U.S. funds from being used for the war in Libya.

Sincerely,

Dennis J. Kucinich

Member of Congress

http://www.commondreams.org/newswire/2011/03/29-8

Lacrimosa (Requiem) - Wolfgang Amadeus Mozart [lyrics]

Chopin - Notturno in Do# minore

Vivaldi - Spring

Obama’s Libyan Operations are Unconstitutional

You can sympathize with the humanitarian motives of our Libyan intervention while still doubting its constitutionality.

The Constitution prescribes the rules about how the United States is to enter a war, and the Obama administration has violated those rules.

The administration argues that the hostilities, because limited, do not rise to the level of “war,” as the Constitution uses that word. But that position is almost surely wrong: Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, “war” consisted of any hostilities initiated by a sovereign over opposition. A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.” (Barlow, 1772-73). I have found no suggestion in any contemporaneous source that operations of the kind the U.S. is conducting were anything but “war.”

The Founders’ favorite authority on international law, Vattel, divided wars into three principal categories: defensive wars, offensive just wars, and offensive unjust wars. A nation fought a defensive war when it responded to an invasion. It fought a just offensive war when it responded to an infringement of its rights short of invasion. It fought an unjust offensive war if it attacked another country even though that other country had not infringed its rights. Examples of unjust offensive wars were those fought for conquest or to limit an innocent neighbor’s power.

A defensive war did not require a declaration. A just offensive war did require one, although it might be called something other than “declaration of war.” The declaration triggered certain consequences under international law, but Vattel says its principal purpose was to give the other country a last chance to correct the injury it was inflicting. Because unjust wars were those launched by a country that had not suffered legal injury, it follows that “declarations of war” issued by an aggressor were at least partially defective.

Now: The federal government has only those powers the Constitution grants it. The Constitution grants the federal government authority to begin and wage a defensive war: “The United States shall . . . protect each [state] against Invasion” (IV-4). (Protection of U.S. territories is impliedly authorized as well: IV-3-2) But the Constitution grants only Congressauthority to initiate a just offensive war—that is, an American attack to vindicate our legitimate rights: “The Congress shall have Power . . . To declare War.” (I-8-11). It can be inferred from the document that the government has no constitutional power to wage an unjust war.

The Constitution entrusts Congress with creating the means for waging war: “To raise and support Armies” (I-8-12), “To provide and maintain a Navy” (I-8-13), and “To provide for calling forth the Militia to . . . repel Invasions” (I-8-15). It grants the President authority to serve as Commander-in-Chief (II-2-1). Under the latter provision, the President can oppose an invader (engage in defensive war) without prior congressional authorization, since “The United States [not just Congress] shall . . . protect each [state] against Invasion” (IV-4). But there is no enumerated power authorizing the President to launch an offensive war without a congressional resolution that qualifies in substance as a declaration.

Many quotations from key Founders show that is was their understanding as well. For example, James Wilson, one of the greatest Founders, told the Pennsylvania ratifying convention:

“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives. . . .”

(This quote is only one of several.)

Nevertheless, many well-meaning people have sought to find a presidential power to wage undeclared war. In part they rely on practice arising decades, even centuries, after the Founding. As I point out in The Original Constitution: What It Actually Said and Meant,such evidence is too remote to be a reliable source of original understanding. The fact that the President sometimes has acted unconstitutionally does not render those acts constitutional.

The most sophisticated presidential defenders make the following argument:

* What determines constitutional force is not how the ratifiers understood the document, but its objective “original public meaning” to the larger public;

* the Constitution grants the President the “executive Power” (II-1-1);

* although the Constitution does not mention undeclared wars, based on the practice of the British Crown the President’s “executive Power” included authority to initiate them.

Unfortunately for this argument, recent scholarship has largely destroyed the view that the phrase “the executive Power” conferred the King of England’s power on the President. The most comprehensive study of the subject is Curtis A. Bradley & Martin S. Flaherty’s article,Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545 (2004). In addition,my own published investigation of Founding-Era legal drafting practices discovered that those practices were completely inconsistent with the conclusion that the phrase “executive Power” conferred any authority.

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As for the claim that the Constitution’s “original public meaning” trumps what the ratifiers understood, to my knowledge no one has contested the conclusions of my excruciatingly-footnoted 2007 study of Founding-Era interpretative methods. It concluded that the Constitution was to be interpreted by the ratifiers’ understanding, with “original public meaning” being consulted only when a coherent understanding could not be found. In the case of the war power, though, the ratifiers’ understanding is pretty clear.

So even if the Obama administration’s Libya operations qualify as a constitutionally-authorized “just war” (which is doubtful), launching those operations without prior congressional consent violated the Constitution.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.

http://www.tenthamendmentcenter.com/2011/03/28/obamas-libyan-operations-are-unconstitutional/