Earlier this week, the Obama administration issued a 38-page report to Congress arguing that the ongoing NATO operation in Libya did not require Congressional approval under the War Powers Act because “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.” True, the operation has cost $716 million already, but that’s not really at issue—except, of course, that the money in question has to be authorized by Congress whether the mission does or not. At issue, apart from political posturing and no little hypocrisy from both sides, is the definition of “hostilities” as described in the War Powers legislation, a semantic delineation which has never been made by either Congress or the courts.
It is perhaps ironic how quickly roles have been reversed here: among the chief critics of the Obama administration is the former head of the Bush Justice Department’s Office of Legal Counsel, which may have been the smarmiest collection of sycophants ever assembled in a single federal office. Meanwhile, the Obama administration is distorting language fully as much as the Bush minions did in defending water-boarding.
As Charlie Savage and Mark Landner write in the New York Times,
The escalating confrontation with Congress reflects the radically altered political landscape in Washington: a Democratic president asserting sweeping executive powers to deploy American forces overseas, while Republicans call for stricter oversight and voice fears about executive-branch power getting the United States bogged down in a foreign war.I’m going to leave aside the merits of the Libyan exercise itself: it is a complex issue, with legitimate arguments about moral imperatives on one side and equally persuasive arguments about lack of compelling national interest on the other. Rather, I want to concentrate on the question of whether the ongoing operations in Libya require Congressional approval. Yes, they do.
The administration’s case, one which ignored the objections of Jeh C. Johnson, the Pentagon general counsel, and of Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, is founded on three independent premises, none of which stand up to much scrutiny. The first is that an offensive mission involving drone attacks, sustained bombing, and occasional casualties doesn’t really constitute “hostilities.” The second is that, despite the fact that participation in a NATO-run, UN-sanctioned, mission to protect civilians has morphed into an aggressive attack on Colonel Qaddafi’s compound, the military and geo-political missions have not merged. The third is the apparent assertion that since the mission has taken longer than expected (and that’s never happened before, right?), we should really only be looking at how long the campaign was supposed to last. Add to that the extreme rarity of any White House over-riding the opinion of the Office of Legal Counsel, and the Obama administration has a mess on its hands… or perhaps on its shoes, because they’ve really stepped in something.
There’s even a lawsuit by ten members of Congress, led by leftie Dennis Kucinich, which seeks:
injunctive and declaratory relief to protect the plaintiffs and the country from the (1) policy that a president may unilaterally go to war in Libya and other countries without a declaration of war from Congress, as required by Article I, Section 8, Clause 11 of the United States Constitution; (2) the policy that a president may commit the United States to a war under the authority of the North Atlantic Treaty Organization (NATO) in violation of the express conditions of the North Atlantic Treaty ratified by Congress; (3) the policy that a president may commit the United States to a war under the authority of the United Nations without authorization from Congress; (4) from the use of previously appropriated funds by Congress for an unconstitutional and unauthorized war in Libya or other countries; and (5) from the violation of the War Powers Resolution as a result of the Obama Administration’s established policy that the President does not require congressional authorization for the use of military force in wars like the one in Libya.Most observers believe the lawsuit will go nowhere, and that it represents more of an opportunity to get the complainants’ names in the paper than anything else, but it’s still an intriguing collection of Congresscritters, including Kucinich and John Conyers from the hard left, Walter Jones (remember “freedom fries”?) and Dan Burton from the equally hard right, and Ron Paul (who fancies himself a strict Constitutionalist and sometimes actually is).
But of course, it’s Speaker Boehner whose opposition matters most. It is no doubt true that Mr. Boehner would not be so critical of a Commander-in-Chief of his own party. It is also true that, this time, he’s right: sneeringly describing through a spokesperson Obama’s case as “creative,” then arguing (in his own words) “It just doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities,” and subsequently asserting “The White House’s suggestion that there are no ‘hostilities’ taking place in Libya defies rational thought.”
What boggles the mind here is not the fact that Boehner would be critical of Obama, or that there would be debate about whether the administration’s strategy with respect to Libya is the correct one. Rather, one must wonder at the political ineptness of the President and his team—if you can’t convince this Congress that continuing the Bush administration’s policy of “exporting democracy” is a good idea, if you can’t make a case for fulfilling obligations authorized by the UN and NATO, if you can’t justify the mission in general terms, then scale back the offensive maneuvers, at the very least. More importantly, this silly rhetoric in defense of non-existent executive authority has lent legitimacy to the GOP's hitherto largely fallacious talking points about lack of consultation. And for what? The opportunity to spend a few more hundreds of billions of dollars to drop bombs on Libyan civilians? That really does sound a little too much like the Bush administration.
It takes more than a little ineptness to make John Boehner look good by comparison. The Obama administration has succeeded in doing just that.