Obama's Use of our Military Forces
Ó O. R. Adams Jr. 2011
The military action by our armed forces against the military forces of Libya, in the current revolution in that country, is unconstitutional.
The Constitution of the
On the other hand, I do not see where it makes any constitutional difference whether the military action is called a war, or a police action or something else as in the cases of the Korean, Afghan, and Iraq wars; as long as Congress gives its approval.
In 1973, Congress passed the War Powers Resolution, which is now in effect, and which provides for the taking of certain military action by the President, prior to congressional approval, and providing for when subsequent approval is needed, and reporting to Congress. As to the circumstances under which these military actions may be taken, the act provides:
(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.
It is clear that none of these three conditions, as provided by the act, existed in Libya. Also, although I believe that the President, in addition to the powers related above in the 1973 War Powers Resolution, has authority to act against a threat of imminent attack on the country, and to prevent insurrections against the government, it is also clear that such situations as this did not exist. Since there was no prior Congressional approval, the President's action in Libya was unconstitutional. The fact that it may have been approved by the United Nations, the NATO countries, or any other countries or organizations, is irrelevant. None of these organizations or other countries can change our Constitution. Neither can it be changed by any agreements or treaties with them.
Libyan Operations are Unconstitutional,
 http://www.law.cornell.edu/uscode/50/usc_sup_01_50_10_33.html, http://en.wikipedia.org/wiki/War_Powers_Resolution; for current provisions of the resolution in FindLaw: http://codes.lp.findlaw.com/uscode/50/33/