Friday, November 24, 2017

Obama and the War Powers Act: On Libya

In June 2011, a bipartisan group of members of U.S. House of Representatives objected to the refusal of the Obama administration to obtain Congressional approval in line with the War Powers Act of 1973 for the U.S. military’s continued involvement in Libya. On June 17, 2011, The New York Times ran a story which indicated that Barak Obama had gone against the views of the top lawyers at the Justice Department and the Pentagon in his decision not to seek Congressional approval.

“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 [2011].” The president went instead with the view of 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.”

According to the Times, “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 U.S. House speaker, John A. Boehner, 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.”

It is indeed difficult to imagine that dropping bombs does not constitute or contribute toward hostilities. To parse the War Powers Act as not applying to dropping bombs does not give one much faith that the president has much common sense (or aptitude as a constitutional lawyer). Also raising concern is the possibility that Barak Obama had succumbed to the lust for power. Furthermore, ethically speaking, it is troubling that he would be fine with the conflict of interest wherein the commander-in-chief has the power to decide whether the U.S. military and those of the states (i.e., the militias) will be drawn into a new action. The commander-in-chief has a power-interest in making the policy decision in a direction favoring military activity. The War Powers Act was designed to prevent this conflict of interest. “Hostilities” is simply one way of referring to the military doing what it is designed to do, whether as troops on the ground, ships, or planes (or drones). To split hairs like a micro-managing lawyer not only enables the conflict of interest, it also falls short of the big-picture presiding role of a U.S. president. In other words, Obama's parsing makes him look small and self-serving.

Much more statesmanlike would have been for the president to have addressed Congress in a joint session at the beginning of the involvement of the U.S. military in Libya and asked for a resolution. In other words, the War Powers Act should never have been allowed to become an issue. In standing for the Union, the president could have presided over the question by asking Congress for its yea or nay, proffering his view as a secondary consideration for the Congress. To be sure, acting on a human rights basis to stop a brutal dictator is a worthy cause. I can emphasize with the president for wanting to carry through this agenda. Even so, he should not have allowed what he wanted to eclipse his role in presiding and Congress’ role in forestalling his conflict of interest and representing the people.

I suspect that the typical American on the street read the story and concluded that Barak Obama had succumbed to the elixir of power—not an uncommon occurrence in official Washington. To get a president who is immune from this drug of choice, the Electoral College would have had to draft a duty-bound citizen into serving in the office for a term rather than select among the candidates chafing at the bit to get it. There is something unseemly about someone tooting his or her own horn in order to gain the office, particularly if a lot has to be done to get it. We ought not to be surprised, therefore, when such a candidate gets attached to the power while in office.


Charlie Savage, “2 Top Lawyers Lost to Obama in Libya War Policy Debate,” The New York Times, June 17, 2011.