Obama’s rationale doesn’t 'pass the straight face test'

With an ongoing US military operation in Libya that has yet to receive Congressional authorisation, the top-ranking Republican in Congress has charged US President Barack Obama with nearly violating the War Powers Resolution, a federal law. Meanwhile, a pacifist and left-leaning congressman has joined forces with conservative Republicans to sue Obama based on the same argument.

It’s American political theatre at its best.

The scene was set when Obama authorised US military operations in Libya on March 18 to force Libyan leader Muammar Gaddafi from power after he threatened to kill government protesters.

In a letter issued Wednesday, Obama said that he deployed military resources to Libya to “prevent a humanitarian catastrophe and address the threat posed to international peace and security.” He added that he approved the mission following a request from the Arab League and authorisation from the United Nations Security Council.

At the heart of the unfolding tiff between Obama and members of Congress is the unresolved legal tension that exists between the executive and legislative branches of US government when it comes to war powers.

The US Constitution states that Congress has the power to declare and raise funds for war while at the same time, naming the president the country’s commander-in-chief. The Vietnam-era War Powers Resolution was thus drafted to prevent the president from using legal loopholes to deploy troops into foreign conflicts without a Congressional go-ahead.

The US Constitution states that Congress has the power to declare and raise funds for war while at the same time, naming the president the country’s commander-in-chief. Reuters

Under the resolution, the president must notify and then seek explicit Congressional approval for military operations in places where there are ongoing “hostilities” after 60 days. Among national security types, however, the resolution is controversial. Some former presidents believe the resolution to be unconstitutional and have largely ignored it; some members of Congress have expressed concerns that it has not functioned as it was intended to.

Nonetheless, House Speaker John Boehner, a Republican from Ohio, argued that the administration is in danger of violating the War Powers Resolution if he doesn't quickly seek official Congressional endorsement for the Libya campaign.

In a letter he sent Obama on Tuesday, Boehner wrote:

Five days from now, our country will reach the 90-day mark from the notification to Congress regarding the commencement of the military operation in Libya, which began on March 18, 2011… Therefore, it would appear that in five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorisation from Congress or withdraws all US troops and resources from the mission.

(It should be noted that legally, Obama only had 60 days to seek Congressional approval, or until May 20, 2011. Jack Goldsmith, a former member of the Office of Legal Counsel under the George W. Bush administration has written that this glaring error may have been made to purposefully "distract from the fact that responsible congressional pushback against the President’s Libya intervention under the [War Powers Resolution] should have come at least a month earlier.")

The plot thickened on Wednesday when a motley crew of unlikely bedfellows— led by Representative Dennis J. Kucinich, a pacifist Democrat from Ohio, and Representative Walter B. Jones, Republican of North Carolina—jumped on Boehner’s bandwagon and filed a lawsuit against Obama that also claimed that the president was out of order for failing to seek Congressional approval for the US military’s activity in Libya.

"We have asked the courts to move to protect the American people from the results of these illegal policies," Kucinich said.

Numerous legal experts, however, have said that the likelihood of the lawsuit moving forward is practically nil.

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Obama: Not a war

The White House responded on Wednesday to Boehner’s letter by issuing a 32-page report that attempted to justify the US presence in Libya (the military has provided surveillance, intelligence, and assisted with bombing runs, for example).

Chief among Obama’s rebuttals to Boehner is that the US no longer heads the military mission — NATO took over in late March — and that US operations have a “limited nature, scope and duration” that don’t constitute a war governed by the resolution.

The report stated:

The President is of the view that the current US military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorisation, because US military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision.

US forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorises the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. US operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of US ground troops, US casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterised by those factors.

The U.S. Capitol Molly Riley/Reuters

As legal scholars have pointed out, it is within the legal right and responsibility of Congress to take formal action to withdraw the troops. Molly Riley/Reuters

Boehner responded on Thursday by saying that Obama’s rationale doesn’t “pass the straight face test.” The House Speaker has also threatened to defund the operation, which could run up US military spending by $1.1 billion by September.

But some who have criticised Obama’s failure to seek Congressional approval for the Libya mission still hesitate to pull funding out from the mission. Senator John McCain, a Republican from Arizona, urged his GOP colleagues to not oppose the war "simply because a leader of the opposite party occupies the White House."

"I believe the president did the right thing by intervening to stop a looming humanitarian disaster in Libya," McCain said.

Political posturing

But like the nonstarter lawsuit against Obama, Boehner’s letter is, in the end, a kind of political grandstanding. As legal scholars have pointed out, it is within the legal right and responsibility of Congress to take formal action to withdraw the troops if it does not believe it is sound foreign policy — and it could have done so at any time.

Here’s how Geoffrey S. Corn, a law professor at Southern Texas College of the Law, explained it in a May podcast:

Ultimately, Congress has absolute authority to stop this war tomorrow. It could have stopped it before it even began. The president was clear that he was going for the authorisation to conduct this war and they did nothing, and they continue to do nothing.

Instead, Congress seems to prefer to engage in political theatrics. As Jay Bookman of the Atlanta Journal-Constitution noted:

The truth is, the law remains murky… The situation allows the executive branch the freedom to operate, and the legislative branch the freedom to complain, and that arrangement satisfies both of them. It is an area of the law in which Congress and the executive are content to dance in the shadows...

And as Matthew Waxman, an associate professor at Columbia Law School and a fellow of the Council on Foreign Relations told CNN, the push-back on Obama is really just politics as usual:

More likely what Congress is trying to do is use this War Powers Resolution argument as a bit of a political stick to score some political points, to force the president to go up to Capitol Hill and spend political capital in defending the war and to try to get a stronger Congressional voice in shaping Libya operations. … If you look at polling, public support for Libya operations is not that strong. It’s also a time when the public, members of Congress are really focused on domestic issues. And so perhaps this is a way of really trying to put the president in a tough position of, like I say, spending his political capital.

Published Date: Jun 17, 2011 09:34 am | Updated Date: Jun 17, 2011 09:43 am