War Without Representation: When Obama Bombed Libya, I Sued To Prevent Trump From Bombing Iran
War Without Representation violates the injunction We The People imposed on presidents when we ratified our nation’s organizational bylaws.
By Mark Whitney
Fifteen years ago, I heard the phrase “Limited Kinetic Action” for the first time, and I said to myself, “Self, that there is some world-class, American bullshit!” In 2011, it was the Obama administration spewing this highfalutin political jargon to describe the unconstitutional participation of U.S. Armed Forces in the first Libyan Civil War.
The goal was simple: bypass the U.S. Constitution. By rebranding war as “kinetic action,” the Executive Branch argued that it did not need a permission slip from Congress to unilaterally bomb a sovereign nation. It claimed a drone war did not technically constitute “hostilities”, and therefore, the mandatory “shall” of Article I—which silos the power to declare war exclusively in the hands of the people’s representatives in Congress—could be ignored.
At the Comedy Store I was like, “Hey—it’s not a war if they can’t shoot back!” I am nothing if not a slut for cheap applause breaks.
But, as a citizen, things took a dark turn for me when Defense Secretary Robert Gates testified to Congress: “If I’m in Qaddafi’s palace, I suspect I’d think I’m at war.” Shortly therafter, Gates doubled down on his doublespeak.
“From the U.S. standpoint, American service members are involved in a limited kinetic operation. If I’m in Qaddafi’s palace, I suspect I’d think I’m at war."
~Defense Secretary, Robert Gates, Fox News Sunday, June 19, 2011
And with that, after voting for Obama, I unwittingly became the only citizen to independently sue the United States (see Whitney v. Obama, 845 F.Supp.2d 136 (2012)) to end the unconstitutional participation of U.S. Armed Forces in the Libyan Civil War.
The point was simple. My congressweasel did not vote my proxy, I was therefore unrepresented on a matter of war, and accordingly, this shit has to stop.
Today the Government of United States is one month into Operation Epic Fuck-up—I think they call it—and constitutional scholars from both parties are finally ringing the identical bell I rang fifteen years ago.
Writing today in Executive Functions1, legal experts Jack Goldsmith and Bob Bauer—veterans of the Bush and Obama administrations—call this moment the “second most consequential unilateral use of force in American history,” surpassed only by the Korean War. They note that Obama’s Libya and Trump’s Iran, represent the death of the Congressional check, even as the addled Trump jokes that he is to avoid saying “war” because “you’re supposed to get approval.”
Stuffy people brand a literal interpretation of the Constitution “strict,” as if reading the plain language of a document is an act of political extremism. But we don’t apply “liberal” readings to election dates. Nobody buys the argument that a four-year presidential term should be construed as a “flexible duration based on U.S. interests.”
Why, then, does the political class tolerate parallel legal universes when it comes to aggressive wars waged against sovereign nations?
Article II does not provide a mechanism for such rebranding. It does not allow Presidents to unilaterally wage war in your name. War Without Representation violates the injunction We The People imposed on presidents when we ratified our nation’s organizational bylaws.
As we look forward to the many satirical monologues that will define the 2028 presidential campaign, I predict that the lessons of Libya, Iraq, and Afghanistan will once again be ignored.
We know how these things go. Surgical strikes, followed by support operations, followed by boots on the ground, followed by presidential primaries. In 2027, when the 2028 campaign starts in earnest, candidates on both sides will debate the best way to withdraw from Iran, while never credibly noting that U.S. Armed Forces were not lawfully deployed in the first place.
I sued the United States because, by acting unilaterally, President Obama bombed you, he bombed me, and he bombed my sons, thereby laying the foundation for Trump to bomb my six-month-old grandson. Stated differently, I sued because Obama bombed the “highest office in the land—the office of Citizen,” as the constitutional law professor loves to say when quoting Justice Brandeis.
So, go ahead with your highfalutin kinetic nomenclature where words don’t mean what they say. Let me know how that goes for ya’ come high noon on January 20, 2029, when President Ballroom raises his right pussygrabber for an unconstitutional third term.
Bob Bauer previously served in government as White House Counsel to President Barack Obama. He now teaches at New York University School of Law. Many of his publications can be found here, here, and here. Jack Goldsmith previously served as Assistant Attorney General in charge of the Office of Legal Counsel during the George W. Bush administration. He now teaches at Harvard Law School. Many of his writings can be found here and here.