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?
I’ve got an on again off again relationship with Christopher Hitchens’ writings. It frequently depends on the topic and frankly, how much he’s probably been drinking at that time. He’s arrogant, curmudgeonly, erudite, and smug but always interesting to read. Here’s something to chew on from his latest at Salon called ‘Is Barrack Obama Secretly Swiss?” on the President’s overly guarded response to the recent Arab uprisings.
This is not merely a matter of the synchronizing of announcements. The Obama administration also behaves as if the weight of the United States in world affairs is approximately the same as that of Switzerland. We await developments. We urge caution, even restraint. We hope for the formation of an international consensus. And, just as there is something despicable about the way in which Swiss bankers change horses, so there is something contemptible about the way in which Washington has been affecting—and perhaps helping to bring about—American impotence. Except that, whereas at least the Swiss have the excuse of cynicism, American policy manages to be both cynical and naive.
This has been especially evident in the case of Libya. For weeks, the administration dithered over Egypt and calibrated its actions to the lowest and slowest common denominators, on the grounds that it was difficult to deal with a rancid old friend and ally who had outlived his usefulness. But then it became the turn of Muammar Qaddafi—an all-round stinking nuisance and moreover a long-term enemy—and the dithering began all over again. Until Wednesday Feb. 23, when the president made a few anodyne remarks that condemned “violence” in general but failed to cite Qaddafi in particular—every important statesman and stateswoman in the world had been heard from, with the exception of Obama. And his silence was hardly worth breaking. Echoing Secretary of State Hillary Clinton, who had managed a few words of her own, he stressed only that the need was for a unanimous international opinion, as if in the absence of complete unity nothing could be done, or even attempted. This would hand an automatic veto to any of Qaddafi’s remaining allies. It also underscored the impression that the opinion of the United States was no more worth hearing than that of, say, Switzerland. Secretary Clinton was then dispatched to no other destination than Geneva, where she will meet with the U.N. Human Rights Council—an absurd body that is already hopelessly tainted with Qaddafi’s membership.
I have to admit that I’ve had my own concerns about our tepid national response to the incredible thuggish brutality going on in Libya. First, there’s the news that helicopters were shooting at citizens in the streets. Then, there were the executions of Libyan soldiers who refused to follow the orders to shoot at citizens. Finally, there’s the news of mercenaries paid sums to commit violence on whoever they find in the streets. How much does it take for one to come out and say this is just plain evil and should stop now or else?
Obama’s made one tepid statement on Libya as well as one tepid statement on events at home that concern the stripping of collective bargaining rights from US workers. Both should be low hanging fruit for any Democratic politician. Libya murdered all those Syracuse students in the Lockerbie bombing. Unions fund and work tirelessly for their Democratic candidates including this President. Obama’s sure coming up short on words these days for a man with legendary status as a speech giver and TV personality. His new press secretary Jay Carney appears to be a Milquetoast spokesmodel also whose bland nonresponse responses must reflect the dithering at the top.
Okay, well, back to Hitchens for the strong words …
Evidently a little sensitive to the related charges of being a) taken yet again completely by surprise, b) apparently without a policy of its own, and c) morally neuter, the Obama administration contrived to come up with an argument that maximized every form of feebleness. Were we to have taken a more robust or discernible position, it was argued, our diplomatic staff in Libya might have been endangered. In other words, we decided to behave as if they were already hostages! The governments of much less powerful nations, many with large expatriate populations as well as embassies in Libya, had already condemned Qaddafi’s criminal behavior, and the European Union had considered sanctions, but the United States (which didn’t even charter a boat for the removal of staff until Tuesday) felt obliged to act as if it were the colonel’s unwilling prisoner. I can’t immediately think of any precedent for this pathetic “doctrine,” but I can easily see what a useful precedent it sets for any future rogue regime attempting to buy time. Leave us alone—don’t even raise your voice against us—or we cannot guarantee the security of your embassy. (It wouldn’t be too soon, even now, for the NATO alliance to make it plain to Qaddafi that if he even tried such a thing, he would lose his throne, and his ramshackle armed forces, and perhaps his worthless life, all in the course of one afternoon.)
I’ve always thought Hitchens to be a war monger. His foreign policy diatribes are usually way over the top for my taste but I have to admit that this particular opinion piece is spot on. If we can’t use our position as the world’s superpower to at least publicly condemn these kinds of atrocities, what good are we? There has to be more to do here than just wait around until the tide shows some sign of turning. I’m not suggesting we invade Tripoli but some kind of sign of moral comprehension of the situation–even if it’s just a toughly worded condemnation–would certainly create a signal that the US will not stand around silent while some crazed dictator slaughters his people. Right now, it just seems like the U.S. is just going to sit on its thumbs and watch the slaughter. White House responses to Egypt, Libya, and the suppression of labor in the U.S. feel like a series of “The Pet Goat” reading moments. How guarded of a response do you have to make to thugs?
U.S. President Barack Obama on Friday imposed sanctions on Libya’s government for its violent repression of a popular uprising, signing an executive order blocking property and transactions related to the country.