Obama’s Claim of Libya War Powers Widely Disputed

by , June 18, 2011

President Barack Obama’s claim that U.S. military operations against Libya should not be subject to the War Powers Act and do not require Congressional approval is drawing heavy fire from friends and foes alike.

In a 38-page report submitted to Congress earlier this week, White House and State Department lawyers contended that the Act did not apply because Washington’s intervention does "not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops". 

But that claim went over like a lead balloon with lawmakers on both sides of the aisle who — while most are unlikely to pull the plug on Washington’s three-month-old military involvement — have been unable so far to agree on a resolution authorizing the operations. 

Senator Dick Durbin, one of the administration’s most loyal and effective allies in Congress, became the latest Democrat to desert Obama on the issue when he insisted Friday that the U.S. air war against the government headed by Muammar Gadhafi did indeed fall under the Act and that Congress should vote to authorize it. 

The New York Times also joined the fray Friday, warning in its lead editorial that "[i]t would be hugely costly — for this country’s credibility, for the future of NATO and for the people of Libya — if Congress were to force President Obama to abandon military operations over Libya… However, Mr. Obama cannot evade his responsibility, under the War Powers Act, to seek Congressional approval to continue the operation". 

Originally approved by Congress over then-President Richard Nixon’s veto, the 1973 law was designed to end the decade-long U.S. military intervention in Vietnam and establish curbs on the executive branch’s ability to engage U.S. forces in conflicts abroad without seeking Congressional authorization or a declaration of war. 

The Act requires the president to notify Congress within 48 hours of introducing the U.S. into imminent or ongoing "hostilities". It also requires him to end operations within 60 to 90 days unless Congress gives him the authority to continue, or extends the deadline. In the Libya case, the 90-day period will end Sunday. 

Until now, every president, beginning with Nixon himself, has argued that the Act is unconstitutional because it infringes on the president’s authority as "Commander-in-Chief". At the same time, however, they have been careful to comply with the Act’s notice requirement — as Obama did two days after deploying U.S. forces over Libya. 

At other times, presidents either received authorization to take military action, as George W. Bush did in 2002 before invading Iraq several months later, or construed the appropriation of money by Congress for purposes of conducting operations as an implicit authorization, as Bill Clinton did in the case of the 1999 Kosovo War. 

When specific authorization was not forthcoming — as when Ronald Reagan sent military advisers to El Salvador in 1982, when U.S. naval vessels provided served as escorts for Kuwaiti oil tankers during the Iran-Iraq War, or, most recently, during the Kosovo War against Serbia — lawmakers sued the government to enforce the Act’s terms. 

In each case, however, the courts ducked the issue on procedural, rather than constitutional grounds, which is likely to be the fate of a new lawsuit filed this week by a bipartisan group of ten congressmen — led by Democrat Dennis Kucinich and Republican Walter Jones — asking the courts to force Obama to withdraw U.S. military forces from the Libyan operation because he did not comply with the Act. 

In the Libya case, Obama has not taken the traditional position that the Act is an unconstitutional infringement on his power, but has rather sought to downplay the U.S. role in the operation, which, after being led by Washington during the first days, was formally transferred to NATO. 

Echoing this week’s report, Obama’s spokesman, Jay Carney, stressed that Washington’s role was "constrained and limited" and that the operation itself did "not amount to hostilities" as defined by the Act. 

But that justification has drawn widespread scorn, particularly given the level of U.S. involvement compared to the half dozen other NATO members that are actively engaged in the conflict. 

Indeed, the same administration report that included the legal rationale for not complying with the Act said its Libya-related military operations — which, since the first week of the intervention, have consisted mainly of aerial surveillance, targeting information, refueling costs, and logistical support — have so far cost more than 700 million dollars. Current expenditures are running at roughly 10 million dollars a day. 

Moreover, U.S. warplanes, while not engaged directly in combat, are carrying out about one quarter of total NATO sorties, while Predator drones have been striking targets on the ground. 

While the original justification for U.S. involvement was the protection of civilians, administration officials, including Obama, have made it increasingly clear that the operation is designed to oust Gadhafi from power. 

"They are involved in a war, and the fact that they are in a support role, that I don’t think is dispositive of the War Powers Resolution debate," Jules Lobel, an expert on the War Powers Act, told the Washington Post this week. 

Moreover, the administration’s position that, because its military personnel are not at risk, the Act does not apply could be used by presidents to greatly expand their ability to involve Washington in overseas military adventures. 

"Carving out an exception for drones or airstrikes would be a dangerous precedent, especially in an era when so much fighting can be done from the air and by remote control," the New York Times noted Friday. 

But, aside from the legal issues, the political reasons for compliance with the War Powers Act loom large, particularly given widespread public skepticism about the Libya operation. 

"Military operations of this significance, with far-reaching consequences on our military, security, and relations with other nations, require the clear support of the American people," noted the ranking Republican on the Senate Foreign Relations Committee, Richard Lugar, in a statement Thursday in which he asked that the Committee Chairman, Senator John Kerry, schedule hearings on Libya and the War Powers Act. These hearings are now tentatively scheduled for Jun. 28.

(Inter Press Service)

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