I have been busy with other things and unable to comment on a fascinating story being played out in Washington as to whether and how, if at all, the 1973 War Powers Resolution (also known as the War Powers Act, which was its name in the Senate version) applies to what we are doing in, or over, or next to Libya. Under the War Powers Act, presidents are supposed to get Congress’s authorization or approval, within 60 days (or 90 days in some cases) after they send U.S. armed forces into hostilities.
Presidents since 1973 have objected to the law as an unconstitutional limitation on the president’s power, while at the same time effectively complying with its provisions. Until now, that is.
The Obama administration is following a different approach to the War Powers Act. Instead of saying that the law is unconstitutional but sort of complying with it, they accepting that it is constitutional but saying it doesn’t not apply here because, in essence, our forces in and around Libya aren’t involved in “hostilities.” Amazing.
Let’s catch up on what has been happening in a little more detail. First, from The New York Times of June 15, 2011:
“In contending that the limited American role did not oblige the administration to ask for authorization under the War Powers Resolution, the [White House] report asserted that ‘U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.’ …
‘We are acting lawfully,’ said Harold H. Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with the White House counsel, Robert Bauer.
The two senior administration lawyers contended that American forces had not been in ‘hostilities’ at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to primarily a supporting role — providing refueling and surveillance to allied warplanes, although remotely piloted drones operated by the United States periodically fire missiles, too.
They argued that United States forces are at little risk because there are no troops on the ground and Libyan forces are unable to exchange fire with them meaningfully. And they said the military mission was constrained by a United Nations Security Council resolution, which authorized air power for the purpose of defending civilians.
‘We are not saying the president can take the country into war on his own,’ said Mr. Koh, a former Yale Law School dean and outspoken critic of the Bush administration’s expansive theories of executive power. ‘We are not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of “hostilities” envisioned by the War Powers Resolution.’”
Then, on June 17, 2011, in a story entitled “2 Top Lawyers Lost to Obama in Libya War Policy Debate,” The New York Times reported:
“President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.
Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to ‘hostilities.’ Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.
But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of ‘hostilities.’ Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged. …
The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.
In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.”
And then, in The New York Times of June 20, 2011, as to what we have actually been doing in Libya:
“Since the United States handed control of the air war in Libya to NATO in early April, American warplanes have struck at Libyan air defenses about 60 times, and remotely operated drones have fired missiles at Libyan forces about 30 times, according to military officials.
The most recent strike from a piloted United States aircraft was on Saturday, and the most recent strike from an American drone was on Wednesday, the officials said. …
The unclassified portion of material about Libya that the White House sent to Congress last week, for example, said 'American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator' drones, but included no numbers for such strikes. …
The special anti-radar missiles used to suppress enemy air defenses are usually carried by piloted aircraft, not drones, and the Pentagon has regularly said that American military aircraft have continued to conduct these missions. Still, officials have been reluctant to release the exact numbers of strikes.
Under military doctrine, strikes aimed at suppressing air defenses are typically considered to be defensive actions, not offensive. On the other hand, military doctrine also considers the turning on of air-defense radar in a no-fly zone to be a ‘hostile act.’ It is not clear whether any of the Libyan defenses were made targets because they had turned on such radar.”
Finally, Michael Isikoff noted at Msnbc.com yesterday that Bob Bauer, the lawyer who coordinated the legal review for the President and then defended the Administration’s reasoning, along with Harold Koh of the State Department, in an interview with the press, “left the White House on Friday [i.e., two days after the interview with the press] to return to his law firm (where he will serve as a campaign lawyer for Obama)”. Wow.
I just don’t understand it. Why has President Obama been so adamant against getting some kind of Congressional approval? He got UN Security Council approval. Why not Congress? Did he think he couldn’t get it? Is this some way to be able to claim Libya isn't a war? Or is this all about the U.S. not leading?
What would have been the big deal about getting Congress’s sign-off? In fact, it seems like President Obama has caused himself more problems with Congress by not seeking some kind of approval than he would have if he sought approval. There are reports that some members of the House are going to try to limit financing for our Libyan operations.* It would seem to me that such an effort is probably going to get more support now than it would have gotten if the President had involved Congress from the start.
I don’t understand it. Don’t President Obama, and the Democrats who are supporting his position, realize that their arguments could come back to haunt them when the next George W. Bush is in the White House? If President Obama can ignore the Office of Legal Counsel, why can’t a Republican? It’s such an obvious point, I can’t see why they are missing it. Why is handling this Libyan situation iin this way so important that they are willing to create such a precedent over it?
Two final comments. First, one of the funnier comments in this whole situation came from House Minority Leader Nancy Pelosi. According to the June 16 Washington Post:
“One of the few to publicly defend Obama was House Minority Leader Nancy Pelosi (D-Calif.). Pelosi said Thursday that she remains convinced that ‘the limited nature of this engagement allows the president to go forward.’
‘I am satisfied that the president has the authority he needs to, and I say that as one very protective of congressional prerogative and very supportive of consultations’ between the executive and legislative branches, Pelosi told reporters at a news conference.”
No, Ms. Pelosi. Your alleged “protective[ness] of congressional prerogative[s]” in other cases does not show that what President Obama is doing here is okay. Rather, your support of what President Obama is doing here shows that your alleged “protective[ness] of congressional prerogative[s]” in other cases was based less on principle and more on partisan hackery
Second, a comment of somewhat of a personal nature. I was surprised to see Harold Koh, the State Department legal advisor, take the position he took. When Mr. Koh was dean of Yale Law School, Yale and Dean Koh were among the leaders in the fight against the Solomon Amendment. Back before “Don’t Ask, Don’t Tell” was abolished, some colleges refused to give military recruiters full access to the college placement office on the grounds that the military was discriminating against homosexuals, because of “Don’t Ask, Don’ Tell,” and the colleges could not countenance that. The Solomon Amendment said that colleges who did this could lose their federal funding. Yale and Dean Koh, et al., argued that the Solomon Amendment was unconstitutional, and they took their case all the way to the US Supreme Court. And even after losing 9-0 in the Supreme Court, Dean Koh still said they were going to try to appeal some other way because what the government was forcing them to do was so bad. To see Mr. Koh take the position he did with respect to what President Obama is doing in Libya after how hard he fought the Bush Administration on the Solomon Amendment is, in the words of Mr. Spock, fascinating.
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* Not something I would agree with, regardless of how badly President Obama has messed this up.
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