Lawrence O'Donnell, Rand Paul, and Constitutional Pretzel Logic on Libya

Last night Lawrence O'Donnell practiced an amazing bit of constitutional pretzel logic.  He fiercely (and rightfully) assailed one Republican lawmaker (Eric Cantor) for completely failing Constitution 101.  Cantor had made this completely buffoonish statement that a house bill would become law even without passage of the required senate companion bill, or the president's signature.  Only God knows what the hell Cantor thought he was talking about.  It was the lowest of low-hanging fruit for O'Donnell, but was an amusing segment and made for fun television.

But O'Donnell then jumped into constitutional fantasy-land himself in an attack on Republican Senator Rand Paul.  Paul is arguing that Obama's Libya military aggression lacks congressional authorization and is thus unconstitutional.  Congress has weighed in on this issue before, with the War Powers Resolution:

(c) Presidential executive power as Commander-in-Chief; limitation

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are 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.

Paul's position, when viewed through the plain wording of the constitution and the War Powers Resolution is certainly reasonble.  O'Donnell responded to it last night by attacking Paul via Senate Resolution 85, which passed on March 1st by unanimous consent.  O'Donnell seems to think S. Res. 85 provides some form of congressional authorization for Obama's action in Libya.  It just doesn't.  It does nothing of the kind.

First, here's O'Donnell's segment:

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Now, here is the Senate's own summary of what its bill actually does (bullets added):

Juan Cole, US Intervention in Libya, and the Left's Constitutional Myopia

I'm amazed (and admittedly frustrated) that people like Juan Cole and Digby can so blithely ignore constitutional process in this country. I have already discussed Digby's startling disregard for constitutional process here. Today, Juan Cole has offered an "Open Letter to the Left" in which he lays out his support for the Libyan invasion, and includes a summary of how the Left has been split by the military action there. Nowhere in his synthesis does Cole observe the simple fact that the Libyan military action by US forces is an Article I violation and is in violation of the War Powers Act. Nowhere in his letter does he admit that this might be a basis--to any extent--for some on the Left to be critical of our role in the current conflict.

I perceive a double-standard at play here. We on the Left love constitutions. Everyone should have one. But we can't be bothered with our own. This view is illustrated to some extent by Cole, but it goes much wider than him. Cole's most recent posts covering North Africa and the Middle East have been loaded with references to a recurring, universal demand by populations throughout the region, namely new constitutions or substantially reformed constitutions and constitutional processes-- specifically:

"The Arab crowds are investing their hopes in a new era of parliamentarism, in elections and constitutions, in term limits and referendums, in the rule of law and the principle that governmental authority must derive from the people."

Jordan:

"Some 6000 protesters marched in Jordan on Friday. They said they wanted to transform the Jordanian monarchy into a European-style, constitutional monarchy and to return to an unamended 1952 constitution."

Morocco:

"Thousands came into the streets of Casablanca on Sunday to put pressure on the king to follow through on his pledges. But the crowds added another demand, of a new constitution to be approved by the people."

Bahrain:

"Michael Hudson surveys the wreckage in Bahrain, where the Shiite majority had demanded constitutional reforms in aid of popular sovereignty from the Sunni monarchy, but got imported Saudi Wahhabi troops instead."

Egypt:

"The government has appointed respected jurist Tareq al-Bishri to head a committee charged with amending the 1973 constitution, which had been subject to large numbers of changes that benefited the ruling National Democratic Party. "

Constitutional Process Matters, Except When Digby Knows Better

Digby:

People keep asking me if I support Dennis Kucinich's call to impeach Obama for failing to get congressional authorization for the operation in Libya. Actually no, and not because Obama swears [sic] my team jersey. It's because I know that if he had gone to the congress to get authorization he would have gotten it, so the whole question seems a little bit irrelevant. They always do. Sometimes it's by acclamation as it was with Afghanistan or it's a little bit tougher as it was in Gulf War I. But the congress is not going to deny the president his prerogative to make war. Certainly, the Senate isn't going to do it --- they all look in the mirror every morning and see a future president and they want to be able to make their own wars when the time comes.

All this talk about process obscures the real question of whether or not we should have intervened in Libya and I have little doubt that if the great debate everyone thinks should have happened had happened, it wouldn't have changed the outcome one bit except to give the imprimatur of congress to the administration's decision. So, that's a big whatever. Process matters, but in this case, it's only barely relevant to the real question before us.

Regardless of Digby's prophetic powers,  I would have preferred that my congressman have his say on the floor.  I think he might well have spoken against it.  And I'd like to have given any senator a chance to do a "Bernie Sanders" for a few hours on CSPAN.   Who knows?   Some grandstanding Senator might have pushed the hour late enough that France Sarkozy would have jumped into Libya without us.  In spite of Digby's impressive claim to be able to foretell the future, I'd rather have played that particular game out.   You just never know.  A little time in debate might make a big difference.

Fareed Zakaria's Call for US Intervention in Libya

"If there is one lesson for U.S. foreign policy from the past 10 years" Fareed Zakaria recently wrote, "it is surely that military intervention can seem simple but is in fact a complex affair with the potential for unintended consequences."

Zakaria's article, "The Libyan Conundrum" appears to take precious little time to consider those possible consequences.   Instead, he uses the essay to urge Obama to take aggressive action. Left on its own, Zakaria argued, the Libyan opposition might well turn into an al Qaeda "area of strength."  His reasoning behind why Libya would be more or less vulnerable to al Qaeda influence than a host of other relevant countries including Tunisia, Sudan, Egypt, Yemen or Bahrain is not provided.

Zakaria should be familiar with unintended consequences. Here he is in 2003, just prior to the Iraq War, in an article sometimes cited as evidence of his journalistic "willingness to call out our government's missteps in Iraq:"

"In one respect, I believe that the Bush administration is right: this war will look better when it is over. The military campaign will probably be less difficult than many of Washington's opponents think. Most important, it will reveal the nature of Saddam's barbarous regime. Prisoners and political dissidents will tell stories of atrocities. Horrific documents will come to light. Weapons of mass destruction will be found. If done right, years from now people will remember above all that America helped rid Iraq of a totalitarian dictator."

All the above indeed did come to light, except for the WMDs of course.  But Zakaria expected those revelations to stem from Sadam's abuses.  Instead, they were our own, and are now too numerous, persistent and diverse to quantify.  Indeed, Nir Rosen recently guessed that the mountains of dead from our Iraq "missteps" will likely never be adequately documented.

But how about Zakaria's  missteps?  If the US government can be fairly accused of  screwing up Iraq beyond all recognition (which few would dispute), how can we possibly decouple that same damning assessment from journalists like Fareed Zakaria, who justified and approved that war?  And above all else, how can the American public and American policymakers continue to listen to pundits like Zakaria without remembering how badly wrong they were last time, just a few short years ago?