The War Against Libya Enters the Twilight Zone

by Pejman Yousefzadeh on June 18, 2011

It’s nice to see that members of both parties in Congress think that the Obama Administration’s claims regarding the war are bogus:

Republicans and Democrats on Thursday derided President Barack Obama’s claim that U.S. air attacks against Libya do not constitute hostilities and demanded that the commander in chief seek congressional approval for the 3-month-old military operation.

In an escalating constitutional fight, House Speaker John Boehner threatened to withhold money for the mission, pitting a Congress eager to exercise its power of the purse against a dug-in White House. The Ohio Republican signaled that the House could take action as early as next week.

“The accumulated consequence of all this delay, confusion and obfuscation has been a wholesale revolt in Congress against the administration’s policy,” said Sen. John McCain, the top Republican on the Armed Services Committee who has backed Obama’s actions against Libya.

The administration, in a report it reluctantly gave to Congress on Wednesday, said that because the United States is in a supporting role in the NATO-led mission, American forces are not facing the hostilities that would require the president to seek such congressional consent under the War Powers Resolution.

The 1973 law prohibits the military from being involved in actions for more than 60 days without congressional authorization, plus a 30-day extension. The 60-day deadline passed last month with the White House saying it is in compliance with the law. The 90-day mark is Sunday.

In the meantime, Libyan leader Moammar Gadhafi has maintained his grip on power, and the White House says if the mission continues until September, it will cost $1.1 billion.

Instead of calming lawmakers, the White House report and its claims about no hostilities further inflamed the fierce balance-of-power fight.

“We have got drone attacks under way, we’re spending $10 million a day,” Boehner told reporters. “We’re part of an effort to drop bombs on Gadhafi’s compound. It doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities.”

Sen. Jim Webb, D-Va., a combat veteran and member of the Armed Services Committee, scoffed at the notion.

“Spending a billion dollars and dropping bombs on people sounds like hostilities to me,” Webb said in an interview.

Sen. Bob Corker, R-Tenn., called the claims “really totally bizarre.” Rep. Tom Rooney, R-Fla., said telling Congress and Americans “that this is not a war insults our intelligence. I won’t stand for it and neither will my constituents.”

The contents of the Administration’s report–and the notion that the Administration expects the rest of us to take what it has reported seriously–are worrisome enough. Even more worrisome, however, is the revelation that regular order has completely gone by the wayside in the White House:

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.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.

[. . .]

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.

A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.

The President essentially decided to be his own lawyer in this endeavor, which unsurprisingly leads to the conclusion that he had a fool for a client. The legal rationale that he embraced is amazingly bad; it is quite clear that we are engaged in hostilities, given all of the money that we are spending, the munitions that we are expending, and the people whom we are killing. To claim otherwise is simply laughable, and to claim otherwise because the Administration wants to avoid having to deal with the War Powers Act is deeply worrisome.

Jack Goldsmith has some very smart things to say about this entire mess–as is his wont–and observes quite properly that the position taken by State Department legal adviser Harold Koh is directly in contradiction to Koh’s previous scholarly writings regarding the power of the President in wartime. As Professor Goldsmith notes, Koh isn’t necessarily bound by his previous writings, but at the same time, there is no reason why he ought to have taken the position he took regarding the war against Libya.

Once again, it is worth noting that many of those who fulminated against the supposed Imperial Presidency of George W. Bush are utterly and completely silent regarding this naked power grab on the part of the Obama Administration.

IMMEDIATE UPDATE: Harry Reid, being Harry Reid, believes that the War Powers Act does not apply because it’s going to be a quick war. No, really, that’s what he believes.

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