Obama’s War

For a candidate that basically ran on the brag that he was the only candidate who genuinely opposed the Iraq War Resolution, Barack Obama sure turned into a President that is relying on similar Bushian war logic.  The NYT’s Charlie Savage has a must read article up on the behind-the-scene maneuvers this President made on the way to joining the NATO operations in Libya.  It seems that Obama rejected the views of top lawyers at the Pentagon who questioned the legal authority of the President to approve the operation without Congressional consent.  Glenn Greenwald has some analysis of the article at Salon.

The growing controversy over President Obama’s illegal waging of war in Libya got much bigger last night with Charlie Savage’s New York Times scoop.  He reveals that top administration lawyers —  Attorney General Eric Holder, OLC Chief Caroline Krass, and DoD General Counsel Jeh Johnson — all told Obama that his latest, widely panned excuse for waging war without Congressional approval (that it does not rise to the level of “hostilities” under the War Powers Resolution (WPR)) was invalid and that such authorization was legally required after 60 days: itself a generous intepretation of the President’s war powers.  But Obama rejected those views and (with the support of administration lawyers in lesser positions:  his White House counsel and long-time political operative Robert Bauer and State Department “legal adviser” Harold Koh) publicly claimed that the WPR does not apply to Libya.

As Savage notes, it is, in particular, “extraordinarily rare” for a President “to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice.”  Just imagine if George Bush had waged a war that his own Attorney General, OLC Chief, and DoD General Counsel all insisted was illegal (and did so by pointing to the fact that his White House counsel Alberto Gonzales and a legal adviser at State agreed with him).  One need not imagine this, though, because there is very telling actual parallel to this lawless episode …

Obama is holding to the idea that the Libya operations fall short of the definition of “hostilities” and that the campaign does not fall under provisions of the War Powers Resolution which states that any “unauthorized hostilities” must be halted after 90 days.  This is explained in more detail in the NY Times article itself.

“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”

Still, the disclosure that key figures on the administration’s legal team disagreed with Mr. Obama’s legal view could fuel restiveness in Congress, where lawmakers from both parties this week strongly criticized the White House’s contention that the president could continue the Libya campaign without their authorization because the campaign was not “hostilities.”

The White House unveiled its interpretation of the War Powers Resolution in a package about Libya it sent to Congress late Wednesday. On Thursday, the House speaker, John A. Boehner, Republican of Ohio, demanded to know whether the Office of Legal Counsel had agreed.

“The administration gave its opinion on the War Powers Resolution, but it didn’t answer the questions in my letter as to whether the Office of Legal Counsel agrees with them,” he said. “The White House says there are no hostilities taking place. Yet we’ve got drone attacks under way. We’re spending $10 million a day. We’re part of an effort to drop bombs on Qaddafi’s compounds. It just doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities.”

The logical follow-up question is, of course, is Boehner acting in the interest of Republican politics or the rule of law?  I’ll avoid that one and instead rely on other liberal writers to take the argument that even if Boehner is wrongly motivated, he’s got the action right.  James Fallows writing for The Atlantic states that  “Obama Is Wrong About Congress and Libya”.  Fallows does not have Republican gamesmanship in mind.

But after three months of combat, and after several decades of drift toward unilateral Executive Branch action on matters of war and peace, Obama is doing a disservice to the nation, history, and himself by insisting that the decision should be left strictly to him. If the Libyan campaign ultimately “goes well,” he will not in any way lessen his own political and historic credit by having involved the Congress. If it goes poorly, he will be politically safer if this is not just his own judgment-call war. More important, in either case he will have helped the country if his conduct restores rather than further weakens the concept that a multi-branch Constitutional republic must share the responsibility to commit force. We can only imagine the eloquence with which a Candidate Obama would be making this exact case were he not in the White House now.

Additional analysis can be found at The New Yorker where Amy Davidson argues that bombing Tripoli is the very definition of hostilities.

But the War Powers Resolution doesn’t say anything about wars in which we have allies not counting, or ones the U.N. likes; it isn’t about lonely wars or bad wars, just wars. The Administration adds a second set of rationalizations, which make even less sense:

U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.

Is the point that, while we are bombing Libya, we are doing it from a distance, out of Qaddafi’s forces’ range, so there aren’t “exchanges” of fire, just one-way barrages—hostility, rather than hostilities? By the same reasoning, it wouldn’t count as war if any overwhelming force attacked anyone who couldn’t effectively hit back; that exemption could apply not only to cruise missiles and drones but to a column of tanks rolling into a village. Is the only concern of the War Powers Act—is our only concern about war—whether our own soldiers can be shot? Aren’t we also interested in making sure there is some accountability when our government decides to shoot? (Would, someday, Congress have a say when it came to human troops, but not robot soldiers?) A war is not simply a short-term public-health issue; it can inveigle our country diplomatically, financially, and morally for decades.

The other question is whether the Administration’s summary even describes the reality on the ground in Libya. (No “sustained fighting”?) And given reports of covert operatives, the pressure to end a stalemate, and the continuing threat to civilians, the assertion that there is no “significant chance of escalation” is mysterious—does it just mean that we promise we won’t go in too deep? Wishful words don’t dispel legal obligations.

So, why is Obama afraid of facing congress at this point in time?  Senator Dick Durban–an Obama ally–is currently calling for Congressional authorization of the Libyan actions and his done the paper work.

U.S. Sen. Dick Durbin is backing many of his colleagues in the Senate as in believing that an act of Congress is needed to justify the U.S. military action in Libya.

While the U.S. has gone only so far as launching air strikes, Durbin says a joint resolution authorizing force, barring ground troops and setting an end date should be approved by Congress. Military operations involving Libya have been going on for three months.

“Congress alone has the constitutional authority and responsibility to declare war,” Durbin said. “The founding fathers were very clear that before we commit troops in an offensive situation, that the government can only do that with the approval of Congress. Now the Libyan situation is not as clear as some others but I think it’s clear enough that we should pass an authorizing resolution.”

Durbin says he would vote for it and says what President Obama is doing in Libya is the right thing.

Durbin is posed to do the authorization.  It’s obvious that many Republicans and Democrats would probably support the measure. So, the question remains, why isn’t the President seeking congressional approval at this point?