Journalism in the Public Interest

Latest on Obama’s War Powers Act Workaround

More evidence emerged this weekend that could inflame what’s become a growing controversy about the legitimacy of U.S. operations in Libya. 

We’ve been following how the Obama White House—and other administrations before it—have sidestepped the War Powers Act. As we noted, the law is supposed to limit how long a president can continue military engagements without congressional approval. The administration last week argued that the United States was playing a supporting role in the NATO-led mission in Libya and that its limited involvement did not rise to the level of “hostilities” that would require approval under the War Powers Act. (Read our earlier explainer.)

As it turns out, congressional critics weren’t the only ones who didn’t buy the Obama administration’s legal analysis. Top lawyers in the Pentagon and Justice Department also disagreed and were overruled, reported the New York Times on Saturday:

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.”

It’s common for presidents to look for ways around the War Powers Act. As we noted, one president after another has questioned its constitutionality in the nearly 40 years since its enactment. But in developing his own argument around the law, Obama took the rare step of overruling the Office of Legal Counsel, according to the Times:

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

White House spokesman Jay Carney said last week that President Obama was personally involved in formulating the analysis and that he “worked with White House Counsel and his team.” President Obama ultimately sided with the argument advanced by White House counsel Robert Bauer and State Department legal adviser Harold Koh, according to the Times.

“We do not expect every person to agree with this,” Carney told reporters. “We believe that it is accurate and sound legal analysis.”

A Justice Department spokesman told the Times that the views of its lawyers “were heard, as were other views, and the president then made the decision as was appropriate for him to do so.”

Sunday marked the 90th day of the United States’ military involvement in Libya—a day that was punctuated by NATO’s admission that one of its airstrikes missed its target and may have killed civilians

Disagreement over the War Powers Act has divided lawmakers, including those who support the operations in Libya. 

As we've noted, House Speaker John Boehner, who has said the United States has a "moral obligation" to stand with the Libyan people, hasn't always been consistent about whether the president is in violation of the War Powers Act. While Boehner has criticized the White House for not abiding by the law, he has also previously questioned the law's constitutionality.

The Los Angeles Times reports today that the controversy is causing a rift within Republican ranks, as Sens. John McCain and Lindsay Graham openly criticized their own party over the weekend for using partisanship as a wedge on an issue where there's no real policy disagreement.

I did not elect the lawyers to make decisions in the face of ambiguity, I elected the President to do that. How is this more than a human interest story like: President Takes Input, But Decides to Stay Course in Libya.

Many analyses, including others from CSM as well as the NYT, have pointed out that the issue is anything but clear, and that there is precedent for the President to continue the actions in Libya.  It seems inflammatory to open this article with a statement that takes a difference of opinion and cast is as “inflaming… a growing controversy” when it is clearly a difference of opinion in the Administration on a situation rife with ambiguity. 

I would rather see a President who takes input from lawyers that run counter to the final decision as opposed to a President who all but instructs his phalanx of lawyers to rationalize that which is at best ambiguous and at worse categorically wrong.

It is discouraging, but not surprising, to see former Constitutional law professor Obama continue his race to the right. Just when you think there isn’t anything else that he can unpleasantly surprise you with…
So what’s next- all out nuclear war not being ‘hostilities’ as there are no ‘boots on the ground’?

I thought we were a nation of laws, not a nation of policy.  While I think many on both sides are playing politics with this, the real question is a matter of law not policy.  I think president Obama is wrong on both his policy and the law, but I am not a lawyer (or a politician).

James M Fitzsimmons

June 21, 2011, 8:53 a.m.

While appropriate legal discussion and debate is critical for our integrity as a nation of laws, partisan politics should end at our borders. Senators John McCain and Lindsay Graham are demonstrating leadership by balancing fair criticism with support for the President. Thugs like Gaddafy cannot manipulate us when we are true to our principles.

It’s clear from multiple polls that the majority of Americans are tired of war, military intervention, support, call it what you want.  We are being told that there is not enough money to maintain programs for the poor and elderly, education and infrastructure, but it doesn’t seem to stop us from spending hundreds of billions a year on overseas intervention.  Is it because the ones who support military intervention are not among those who are bear the burden?

All those who favor a military intervention should be the first in line for a uniform and rifle.  Including politician’s and their sons and daughters.  War is a terrible, mindless, monster of a thing and it should not be supported unless absolutely necessary.

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