The New York Times published a disturbing story this morning about Obama’s unusual decision to ignore the advice of two top administration lawyers in deciding that he was not required to obey the War Powers Act and seek Congressional approval to continue military attacks on Libya. By now we should be used to this — the Constitutional scholar and one-time Iraq War critic flagrantly flouting the law to pursue a hawkish foreign policy in far-flung places. But the audacity of his position — that the US is not involved in “hostilities” in Libya and therefore the War Powers Act does not apply — is still stunning.
The Center for Constitutional Rights, which litigated the first case under the War Powers Resolution among many others, released a statement today by its vice president Jules Lobel explaining the numerous errors in the Administration’s position. Lobel is a law professor at the University of Pittsburgh Law School and a contributor to our book, The Goldstone Report: The Legacy of the Landmark Investigation of the Gaza Conflict.
Obama Administration in Violation of War Powers Resolution
1. The United States is clearly engaged in warfare against the Libyan government. Both the Constitution and the War Powers Resolution require Congressional authorization for the Libyan conflict, which the Obama Administration has not obtained. Since 60 days have passed since the U.S. first initiated these military operations, the War Powers Resolution requires that the President terminate the operations unless he obtains explicit Congressional authorization.
2. The Obama Administration’s June 15 letter to Speaker of the House Boehner nonetheless argues that Congressional authorization is not necessary under the Constitution or the War Powers Resolution because of the limited nature, scope and duration of the U.S. military operations in Libya. It claims that the U.S. military operations against Libya “are distinct from the kind of ‘hostilities’ contemplated by the Resolution’s 60 day termination provision”. “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”.
This argument simply ignores the language of the War Powers Resolution and would permit the U.S. to engage in wars against other nation through the use of predator drones or long range bombing without Congressional authorization, so long as there are no troops on the ground.
3. The War Powers Resolution covers the introduction of U.S. troops into hostilities or into situations where the imminent involvement in hostilities is likely. Thus, the contemplation was that the Resolution would cover U.S. “involvement” in hostilities, and not simply situations where U.S. soldiers are engaged in “sustained fighting or active exchanges of fire with hostile forces”, or are suffering casualties. The Obama Administration’s letter would permit the U.S. to engage in high altitude bombing of a foreign nation, or predator drone attacks (and the Administration admits that such drone attacks are occurring against Libya) so long as there was no active exchange of fire or substantial risk of U.S. casualties.
4. The War Powers Resolution’s language definitively rejects the Administration’s contorted definition of hostilities. Section 8 of the Resolution, entitled Interpretation of Joint Resolution, states that,
“For purposes of this joint resolution, the term ‘introduction of United States Armed Forces’ includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country of government when such military forces are engaged. . . in hostilities.”
Certainly, United States military actions in support of the NATO forces directly engaged in hostilities fall within this provision. Indeed, here the United States was not and is not simply a passive participant or accompanier of foreign forces, but was one of the key instigators of this military action and played a key role in the early military strikes against Libya.
5. It is particularly unfortunate that President Obama’s high level legal advisors have chosen to take such an inappropriate and narrow view of hostilities, which would allow the President to bypass the Constitution’s and War Powers Resolution’s restrictions on unilateral Executive war making by either coordinating efforts with NATO or the United Nations, or engaging in high tech warfare to overthrow another government. Where, as here, the United States has directly engaged in warfare against another government (for whatever purposes, either purportedly noble and high-minded or not), is currently engaged in what the Administration terms are “surgical strikes” against the military forces of another nation (perhaps killing civilians as a “collateral” consequence), is actively involved in the command, coordination and participation of NATO forces attacking Libya, and has expended one billion dollars in this ongoing military operation, it is pure legal sophistry to claim that we are not involved in hostilities.
CCR calls on the Administration to comply with the Constitution and the War Powers Resolution and make its case before Congress regarding the continued need for military action in Libya. Failing that, Congress should refuse to relinquish its authority for oversight and authorization.
