Larison insists that the Libyan War is illegal and has been so from the start. A reader is in related territory:
No, you called it just right: the words are illegal, unlawful and unconstitutional. Just because something is "illegal" does not mean it's "criminal," that would only be the case if the law which is violated is criminal in nature. Most public law is not criminal law.
The issue here is a struggle between two of the three branches.
In the fateful deliberations of the Constitutional Convention in 1787, there was a strong consensus that the war-making power could not be granted entirely to the executive, because the executive could use this power–which far outweighs most others–to destroy the balance of powers scheme and establish its total ascendancy. As George Mason famously said, the executive "cannot be trusted with it," and neither was the senate alone able to balance it. "I am for clogging rather than facilitating war," he proclaimed.
So the power to declare war and other key elements of the war-power were given to Congress, as a conscious counterweight–to slow the process and to force deliberation. The War Powers Act was consciously thrown down as a marker to insure there was no "creep" to war through measures that seem to fall just short of it. The Libya operations present one of the clearest challenges for Congress in a generation.
To be clear, the question in the first instance is not whether the operations in Libya are smart or ill-advised, it is whether Congress is capable of recognizing and dealing with its constitutionally delegated powers. The deadline is now a week away, and Congress is filled with irrelevant chatter about extension of the AUMF in the wake of the bin Laden killing. But no one seems to recognize the Libya issue which is front and center. Congress, particularly the Republican leadership in the House (but there's plenty of blame to share with the Democratic leadership as well), are demonstrating their constitutional illiteracy yet again. And just think: they started this session reading the Constitution! Would that they really read it.
The Dish 