Friday, May 20, 2011

Newspaper Editorials Say Obama Administration in Violation of War Powers Resolution in Libya

MAY 20, 2011

Libya and the War Powers Abdication

A Vietnam-era law meant to hamstring a Republican president now puts Barack Obama in a bind

Wall Street Journal

The clock is running out on President Barack Obama's military adventure in Libya. Today his campaign of pinprick air strikes and half-hearted support for the rebels will run smack into the War Powers Resolution. The law, passed in 1973, requires that the president withdraw U.S. forces from hostilities after 60 days unless he secures Congress's approval or a formal declaration of war.

In the depths of the Vietnam War and Watergate era, a Democratic Congress enacted the War Powers Resolution over Richard Nixon's veto. On the positive side, it recognizes that the president may constitutionally introduce armed forces into potential or actual hostilities. Nothing remarkable there: For over two centuries, presidents have deployed our armed forces into conflicts large and small without congressional approval.

But the resolution veers into unconstitutional ground by limiting the president's unilateral ability to continue military operations beyond 60 days.

The law, hailed as an overdue exercise of Congress's war powers, instantly became a liberal icon against the "imperial presidency." Yet when Democrats control the White House, they tend to see things much as Nixon did. President Bill Clinton didn't bother to get prior legislative permission for his Kosovo war and sidestepped the War Powers Resolution thereafter. And Mr. Obama hasn't lifted a finger in the last two months to get Congress's consent for his Libyan operation.

When Mr. Obama first announced the Libyan intervention along with our NATO allies, he claimed constitutional authority as chief executive and commander in chief and said he was acting "consistent with" the War Powers Resolution. Congress has shown no interest in authorizing our limited military operations, nor has it provided any funding. At this point, if the president were to seek approval, Congress would likely refuse.

Mr. Obama has only himself and his party to blame for this state of affairs. As liberal politicians and academics read the Constitution, Congress's power to "declare war" requires legislative approval before presidents can use force abroad. Candidate Obama represented the Democratic consensus when he told the Boston Globe in December 2007: "The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

Indeed, invoking a single concurring opinion by Supreme Court Justice Robert Jackson in a Korean War case (Y oungstown Sheet and Tube v. Sawyer, 1952), liberals have argued that a "National Security Constitution" gives Congress the power to override the president's wartime decisions. They used to enjoy filing lawsuits against Republican presidents and their wartime decisions or assaulting them in the nation's editorial pages and airwaves for acting "above the law." If American forces over Libya do not stand down today, the administration would be directly violating the Constitution as understood by Mr. Obama.

President Clinton faced a similar problem. No act of Congress had authorized war against Serbia, a sovereign nation that had not harmed or threatened us in any way. Congress voted down both a declaration of war and a statute approving hostilities. Mr. Clinton tried to "save" the War Powers Resolution deadline by claiming that a supplemental appropriations bill that specifically funded Kosovo costs had implicitly extended the 60-day clock.

Mr. Obama has no handy escape route. Attorney General Eric Holder's Justice Department is arguing that the War Powers Resolution doesn't apply because the Libyan intervention is too "small" to constitute a "war" under the Constitution. This will come as a surprise to Moammar Gadhafi, who has escaped several attempts on his life, not to mention the Libyans killed by U.S. strikes. The Constitution makes no distinction between "big" wars that require congressional approval and "small" wars that do not. Neither the War Powers Resolution nor our nation's practice draws that line.

To evade the resolution's deadline, the administration might close down our Libyan operations briefly and then restart them. It might scale back our operations to non-combat surveillance or coordination, rather than targeting. Or it might claim that the U.S. isn't really engaging in hostilities because NATO has taken the lead in Libya. None of these fixes would be consistent with a fair, honest reading of the War Powers Resolution, or with the intentions of the Democratic-controlled Congress that passed it.

An administration truly interested in respecting the rule of law has two choices. It could abide by the War Powers Resolution and begin withdrawing from Libya. This would leave France and Britain in the lurch over Libya; it might even deal a deadly blow to the NATO alliance.

Or Mr. Obama might declare the War Powers Resolution an unconstitutional infringement on presidential power. This would enrage his antiwar base. But it would place him squarely in the tradition of the presidents who have held office before him.

Mr. Yoo is a law professor at the University of California, Berkeley, and an American Enterprise Institute scholar. Mr. Delahunty is an associate professor at the University of St. Thomas School of Law in Minneapolis. Both served in the Justice Department under President George W. Bush.

May 20, 2011

Congress must OK war actions


Not one young soldier will come home tonight, when the 60-day deadline for President Obama to terminate force in Libya passes.

The War Powers Resolution (WPR), enacted at the end of the Vietnam War, places that 60-day time limit on the executive when Congress has not authorized military action.

In fact, the administration has been violating the WPR from the moment the first bomb dropped on Libya. The WPR allows the president to launch an attack without Congress' approval only in self-defense. Even administration officials recognize our involvement in Libya is offensive, although, they claim, justified by a broad humanitarian concern.

Candidate Obama was unequivocal: "The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Just last week, the administration told a Senate committee that the president would act "consistent with" the WPR, which means either seeking congressional authority or withdrawing troops at the first opportunity.

Article I, Section 8, of the Constitution grants Congress the exclusive power to declare war. Though the president has used the term "kinetic military action," our action in Libya using warplanes, bombs and missiles is a war, just as Libya would be declaring a war on us if they attacked our homeland.

On March 29, I introduced H.R. 1212, a bill to require the president to seek congressional approval for the war in Libya. And while my bill has received strong and growing bipartisan support from more than a dozen members of Congress, it's unlikely that congressional leadership will permit a vote on it. The status quo provides cover for Congress, by allowing the people's representatives to complain about the president's actions without committing to a position for or against the war.

This strategic ambiguity still is far preferable to the latest constitutional abdication making its way around the Hill. Next week, the House will consider a worldwide authorization of use of military force, affirmatively and pre-emptively giving the president unprecedented power to launch attacks.

Under the new authorization, the president may "detain belligerents" indefinitely, anywhere in the world, even if they are not associated with al-Qaida. The president also is empowered to use force against people who support an organization that "substantially support[s] al-Qaida, the Taliban, or associated forces that are engaged in hostilities" against the United States. An American citizen who gives money to a charity that, unbeknownst to him, gives money to forces associated with the Taliban, could be targeted by the U.S. Armed Forces under the authorization.

This has been tried before. According to congressional leaders involved in drafting the authorization of use of military force in the immediate aftermath of Sept. 11, the White House's draft at the time included an open-ended authorization of force "to deter and pre-empt any future acts of terrorism or aggression against the United States" regardless of location or connection to the terrorist attacks. Congress refused and instead included a Sept. 11 nexus in the final authorization.

The irony is rich.

The president who won the Nobel Peace Prize for raising the United States' international standing and who campaigned against his predecessor's foreign policy, may now sign into law a George W. Bush-era war power grab. Meanwhile, Republicans in Congress can't delegate away this Constitutional power fast enough, even though a Republican Congress resisted giving a similarly broad power to a Republican president in the wake of the greatest terrorist attack in our history.

Our Armed Forces are stretched thin across three theaters and constrained by a record deficit in Washington. And while we enter our 10th year of sacrificing blood and treasure to build democracies, a home-grown democratic revolution in the Arab world has overturned several dictatorships, largely without America's help.

There has been no better time to regain our Constitutional balance and check the president's war powers. Congress is a co-equal branch — and it should start acting like it.

U.S. Rep. Justin Amash is a Republican from Cascade Township and author of the RECLAIM Act, which requires the president to receive congressional authorization to continue strikes against Libya. Email comments to

Is President Obama About to Break the Law?

May 19, 2011 7:12 PM

From the beginning of the U.S. military intervention in Libya, the Obama administration has cited the 1973 War Powers Act as the legal basis of its ability to conduct military activities for 60 days without first seeking a declaration of war from Congress.

The military intervention started on March 19; Congress was notified on March 21.

Those 60 days expire tomorrow.

Last week, Deputy Secretary of State James Steinberg told the Senate Foreign Relations Committee that President Obama “has been mindful of the provisions of the War Powers Resolution and has acted in a manner consistent with them. He will continue to do so.”

Steinberg said the administration is “mindful of the passage of time including the end of the two-month period, we are in the process of reviewing our role, and the president will be making decisions going forward in terms of what he sees as appropriate for us to do."

What is President Obama -– a former lecturer in constitutional law -- going to do? White House officials refused to say.

And the chorus of criticism -– from the right and left -- is rising.

On Wednesday six Republican senators -- John Cornyn of Texas, Tom Coburn of Oklahoma, Jim DeMint of South Carolina, Mike Lee of Utah, Ron Johnson of Wisconsin, and Rand Paul of Kentucky – wrote to the president, saying the military intervention "was taken without regard to or compliance with the requirement of section 2(c) of the War Powers Resolution that the United States Armed Forces only be introduced into hostilities or situations where imminent involvement in hostilities is clearly indicated by the circumstances ‘pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.’

“As recently as last week your Administration indicated use of the United States Armed Forces will continue indefinitely,” the GOP senators wrote. “Therefore, we are writing to ask whether you intend to comply with the requirements of the War Powers Resolution. We await your response.”

Rep. Brad Sherman, D-Calif., told CNN the operation was “bring(ing) democracy to Libya while shredding the Constitution of the United States….He cannot continue what he’s doing in Libya without congressional authorization. And when a president defiantly violates the law that really undercuts our effort to urge other countries to have the rule of law.”

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