War Powers Act Does Not Apply to Libya, Obama Argues

[Purveyor]

Source: NYTIMES

WASHINGTON — The White House is telling Congress that President Obama has the legal authority to continue American participation in the NATO-led air war in Libya, even though lawmakers have not authorized it.

In a broader package of materials the Obama administration is sending to Congress on Wednesday defending its Libya policy, the White House, for the first time, offers lawmakers and the public an argument for why Mr. Obama has not been violating the War Powers Resolution since May 20.

On that day, the Vietnam-era law’s 60-day deadline for terminating unauthorized hostilities appeared to pass. But the White House argued that the activities of United States military forces in Libya do not amount to full-blown “hostilities” at the level necessary to involve the section of the War Powers Resolution that imposes the deadline.

“We are acting lawfully,” said Harold Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with White House Counsel Robert Bauer.

Read more: http://www.nytimes.com/2011/06/16/us/politics/16powers.html

[Hawkowl]

1. But Obama is powerless!

He would be more progressive, more liberal, more pro-worker, if only the BIG, BAD, REPUBLICANS, would let him. What a fucking crock of shit. He is perfectly capable of doing whatever he feels he needs to do. It is just he feels an overwhelming need to support the congressional military industrial complex and the banksters over the real people.

[Robb]

2. Well that's a damn weak argument.

I wonder why they bothered making it, as no one who cares is going to buy it. Baffling.

[tekisui]

4. I totally agree.

[neoralme]

15. I agree. Plus, it's a little strange.

[tekisui]

3. Wow. That is fucked up. The WH is claiming since troops aren't

at risk, since we are using drones to fire and kill 'enemies', the President can act unilaterally without Congress.

There you have it. Drones are not war, they are outside the War Powers Act, and the president can do anything as long as there is minimal risk to US servicemembers.

We are all going to regret that, whether you do now or not. This is as bad as re-defining torture.

[drokhole]

7. "Do not think yourself better because you burn up friends and enemies with long-range missles...

...without ever seeing what you have done."

- Thomas Merton, from "Chant to Be Used in Processions around a Site with Furnaces"

[neoralme]

17. I wonder what the opinon will be when a Chinese Drone starts

popping off buildings in a US major city?

[mazzarro]

23. Now Obama has made the left hypocrites

because we have democrats who have been enthusiastically supporting this stupid and deceptive war in Libya. IMO he as as much lied about Libya as Shrub lied about Iraq. I am not going to wait until they both have equal number of lies to say that because I had expected him to be more truthful and straight forward as he had campaigned to do.

[krabigirl]

61. no, people themselves who support it are the hypocrites, it's their choice.

[No Elephants]

67. Self Delete.

[ixion]

5. I swear, this administration sounds more like BushCo everyday

it makes me sad.

[XemaSab]

10. Meet the new boss

same as the old boss. :(

[L. Coyote]

52. No, they have been very consistent since day one, they are Bush/Cheney redux

all over again on foreign policy, if not worse.

[No Elephants]

66. Not to make you sadder, but Bush DID go to Congress for war resolutions for

both the infamous WOT and the infamous Iraq War.

Obama has gone less far than Bushco in some areas, as far as Bushco in other areas and, in still other areas, Obama had gone further (in the wrong direction) than Bushco. This bs falls into the third category.

And, in 2016, America will either re-elect Obama or someone who will in all likelihood be worse. So, please find some way to cheer up.

[GreenStormCloud]

76. Don't you mean in 2012?

[frylock]

6. i expect the rapid response team to lecture us on how we don't understand how things work..

and what a sensible decision this is.

[U4ikLefty]

11. Yep they will be here soon & OFTEN

to muddy the waters.

[no limit]

8. Which is why when this started he wrote a letter to congress as required by the war powers act?

If he doesn't think it applies why did he initially follow it?

What was his position on the war powers act when Bush was in office?

[neoralme]

13. These are supreme questions that history will answer conclusively..

[Igel]

45. The relevant text allows what are probably pretty good inferences.

Page 25 (as numbered in the document):
"The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. 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."

At first significant US forces were in the territorial waters and airspace of Libya. "Forces" defined as "piloted airplanes." By any definition they were engaged in hostilities and came under the terms of the WPR. There was a quick drop-off in the number of forces that belonged to the US acting under orders from the US. Since the US Forces involved aren't on the land, waters, or airspace of Libya, they're not engaged in active hostilities (even if as of a few years ago 1/4 of the sorties were American, per Clinton: I don't know if that means recon and refueling or includes UAVs).

* sought approval. Obama would have been in favor of the WPR in this case--in my view because Senators and Representatives are very jealous of their power--and could state he's being consistent because US Forces were actively deployed in Iraqi waters, airspace, or terrain and consequently could be wounded or killed by enemy fire.

The two inferences I get are that (1) he's defining US Forces as consisting entirely of human flesh and (2) hostilities as being only the stuff our forces would be on the receiving end of. We could level Moscow with cruise missiles, send 10k UAVs into Yemen and these wouldn't constitute hostilities because we'd have no active duty personnel at risk of being wounded or killed during the actions; moreover, those wouldn't constitute "US Forces" being involved under the WPR because no human being is in the "enemy's" airspace, territorial waters, or their land territory.

Without his definitions, his argument falls flat. Originalism is a nice touch--one wonders if he believes it because it's a good principle (albeit not typically a progressive one), if he's arguing it because it's expedient, or if he's being insincere in making an argument he doesn't believe because the other side might feel pressured to accept it.

[Solly Mack]

9. Alrighty then

The word 'rue' comes to mind.

[neoralme]

12. I am not the multi-level chess player of some here, but it looks to me

like Obama has been placed in checkmate. If he pulls out of Libya because he does not want to be in violation of The WPA, the Republicans look like heroes getting us out of one of four wars. And the self-congratulations will go on ad nauseaum. If Obama resists, it makes him look like bad guy to the American People for keeping us in the idiotic Libyan war. The Republicans will say they tried but Obama felt it necessary to maintain the war in Libya. Pretty much a disaster. Course, when the no troops on the ground turned out to be not true, like the war will be over in weeks, Obama became suspect. Will his circling the wagon turn out to be the time he tries to capitulate to Republicans by reducing SS tax on employers or otherwise selling the entitlement farm? I think it might be. Again, a disaster.

[JDPriestly]

28. A disaster which Obama has brought on himself.

The alternative is that Obama has good reason for going into Libya and can persuade Congress to support his effort.

If he can't persuade Congress, his war is unconstitutional. That is the way it works. Only Congress as the authority to declare war. The president can't ease us into a war in the way that Obama is trying to do it.

[neoralme]

31. Yeah, JD; it is making me physically ill, the things he is doing. I am

having trouble maintaining. See ya later, ma'am.

[Fool Count]

51. Yeah, not such a farfetched alternative either.

Even Bush managed to pull it off with his Iraq war, so how hard could that be? US Congress rarely sees a war it does not like (them wars being of such
obvious benefit to all the donors) and has yet to vote down a war powers resolution. So if Obama can't even make a case for bombing insignificant brown
people in front of a bunch of war hungry political prostitutes with zero chances of any US casualties, his case for the war is just too weak. Should he be
fighting a war he can't justify? I am mightily perplexed at this whole exercise, it has to be some epic failure of the executive decision making process.

[Arctic Dave]

14. Who knew Obama would turn out to be such a weaseling warmonger.

Oh well. Just smile and don't make waves or the compliance brigade will shout you down.

[Heretofor]

16. Constitutional...

The argument also goes back to the Constitutionality of the War Powers Act, which most Presidents have considered unconstitutional (and they are probably right) as the C-in-C post is strictly held to the executive.

Unfortunately, this is probably an unconstitutional action in Libya, with even poorer reasoning than Iraq. There's NO claim that it's in our national interests. It's Italy's, if anyone's.

[Demeter]

33. And France

Sarkozy foams at the mouth over Libya.

[No Elephants]

70. Article I, Section 8, Clause 11 of the Constitution is indisputably Constitutional. tho.

Presidents may argue that Congress has no power to require them to go crawling to Congress after 60 days under the War Powers Resolution. However, that leaves them with Article I, Section 8, Clause 11 of the U.S. Constitution, which requires themn to go crawlling to Congress immediately.

I guess that leaves them making the ludicrous argument that bombing a sovereign foreign nation within its borders is not an act of war.

BTW, there is an argument about the War Powers Resolution that Constitutional scholars make, but a President is unlikely to make, namely that Congress has no ability to delegate its war powers.


As a U.S. citizen, I am entitled to the bargain the Constitution makes with American citizens (and maybe non-citizens, too). Part of that bargain is that the largest and most representative body of the U.S. shall be the only one to commit U.S. blood or treasure in war.

[Hosnon]

86. Only if a declaration of war is necessary though.

The situation might not be war or a state of war against the U.S. (perhaps by threatening its vital interests or citizens) may already exist.

In either situation, Congressional approval is not required.

[backtomn]

18. He has the right to challenge it in court

That is why we have laws. He may very well be right, but he is not allowed to say "it doesn't apply to me" and move ahead like nothing happened. If he is right, his case in court will be victorious.

[wordpix]

21. true, AND he will make enemies in Congress with this argument, which is

essentially, "We don't have boots on the ground, ergo, it's not a real war." Not a way to win Congressional support for this or anything else.

[ClarkUSA]

26. Um, you do know that it's the Teabagger House who're pushing this, right?

They are already his enemies.

[guruoo]

32. It's freedomworks opchaos to divide the left, and reduce Democratic voter turnout nt

[ClarkUSA]

37. Thank you.

Nice to see there's a few of us who get it.

[guruoo]

44. Like to think I do....

[ClarkUSA]

46. heh

That button looks very familiar. ;)

:hi:

[No Elephants]

64. Yea, Democrats need freedomworks to make them worry about following the U.S. Constitution re: waging

War.

LOL!

[wordpix]

81. what is LOL is your lumping Kucinich et al. with freedomworks

:rofl:

[guruoo]

87. The Constitution appears to both support, and conflict with with the WPA as written. nt

[tekisui]

42. With plenty of Democratic support.

[No Elephants]

63. Who the fuck cares who's pushing the idea that the President should follow the U.S. Constitution re:

waging war?

If bombing a foreign nation is not waging war, what the fuck is it?

If Democrats in Congress are not pushing for our Constituional Lecturer in Chief to obey the Constituion, they are putting party loyalty to a Democratic President above the U.S. Constitution--and shame on them for so doing.


Oh, and if sane people needed proof that a Democratic President has a whale of a lot of power over Democrats in Congress, failure of Democrats to insist on following the Constitution in matters of war should be enough. Then again, if we're not talking about sane people, proof doesn't matter.

[wordpix]

80. um, Denis Kucinich + 2 Dems are teabaggers?

:rofl: oh, yeah, I forgot they are :sarcasm:

[backtomn]

19. The Supreme Court may actually agree....

but, that is where this should be finished.

[Name removed]

20. Deleted message

Message removed by moderator. Click here to review the message board rules.

[leftyohiolib]

22. “We are acting lawfully,” isnt this what w said re: waterboarding

after gonzo gave the go-ahead?

[L. Coyote]

54. "If the President does it, it is legal." Dick the **ick Nixon

[Javaman]

77. "When the President does it, that means it is not illegal."

that's the correct quote.

who was the former nixon aid that just came out and stated that all of the things nixon was guilty of, is now legal?

and people think we aren't creeping toward full on fascism.

[L. Coyote]

84. Correction appreciated. I wish we knew what Nixon was really guilty of. I suspect

we only know about the tip of a very large iceberg!

[Javaman]

85. Very true.

ah for those missing 16 minutes and to be a fly on the wall in his private office after he lost the '60 election.

he was a vindictive MF.

[Roland99]

24. How quaint.

[Journeyman]

25. Good thing he calls himself a "Constitutional lawyer." Can't imagine anyone else does. . .

[boppers]

56. UN declared action.

The US has a treaty with them.

Done.

Are you a Constitutional lawyer?

[U4ikLefty]

59. Stick to code Boppers.

[No Elephants]

65. Um, no. Re: Officials of the U.S., the Constitution of the U.S. trumps treaties to which the U.S. is

Party.

Treaties are agreements that we enter into with other nations, or with the U.N., via the President, with the advice and consent of the Senate. However, the Constitution, which is our internal law, governs--and limits---how the President, the Senate and the House may legally behave, even when they enter into and operate under treaties. That is the agreement of our federal (and, since the 14th amendment, our state) officials with us, "we the people of the United States."

The Constitution, again our internal law, was originally written to divide power as between the states and the new(ish) federal government. The allocation of power as between the states and the federal government was THE overarching issue when the U.S. Constitution was first written.


For that reason, when the Supremacy Clause, part of the Constitution as originally written, states that laws of Congress, treaties and the Constitution itself are the supreme law of the U.S., it means that state law is subordinate to federal law (if and to the extent that state law conflicts with federal law). It does NOT mean that the Constitution, treaties and laws of Congress all stand on an equal footing with each other.

Nor, as a practical matter, can all three posssibly be on equal footing. When, say, a law of Congress conflicts with, say, the Constitution of the United States, one of the two has to govern the other. It's very well established that when those two conflict, the Constitution governs. Therefore, any the law of Congress that the SCOTUS holds to be in conflict with the U.S. Constitution will be invalidated, null and void, to the extent necessary to eliminate the conflict between the statute the U.S. Constitution.

Similarly, when a treaty conflicts with the U.S. Constitution, the U.S. Constitution governs. The UN can declare all the wars it wishes, but the UN cannot eliminate the fact that the U.S. Constitution gives Congress, and only Congress, the power to declare war.

Inasmuch as we have far more laws of Congress than we do treaties, the supremacy of the U.S. Constitution over laws of Congress (and orders of the President0 has been very well established in a multitude of cases since Marbury v. Madison, while only a few SCOTUS cases advert to the Supremacy of the U.S. Constitution over treaties. However, those cases do exist.

To a limited degree, Congress purported to give the President some ofCongress's war power by enacting the War Powers Resolution. Scholars debate whether Congress even had the power to delegate to the President ANY of its exclusive Constitutional power to declare war. However, in this instance, the President is claiming he is not bound to consult Congress AT ALL. So, the issue of whether he is violating a Constitutional War Powers Resolution AND the U.S. Constitution or "only" the U.S. Constitution is moot.

The Constitutional scheme, written when we had no income tax and no standing armies, makes perfect sense. First, if the U.S. is going to commit the blood of its citizens OR its treasure, let it do so only upon the vote of its largest and most representative body--and, as to the House--the body most answerable to voters. And let the same body that must vote to fund a war be the body that declares the war.

Am I a Constitutional scholar? That's really not the business of anyone on a message board. Moreover, for purposes of a message board, that is really is irrelevant. First, it's not as though people who claim to be Constitutional scholars always agree with each other. Second, the above statements of law and fact in this post are either true or they are false. Feel free to prove them false, if you can. The wiki on the Supremacy Clause provides most of the info you'll need, but Lord knows, Mr. Google is a dreamboat.

Btw, the statements of law and fact in this post are all fairly basic and uncontroversial. The only controversial issue is whether the War Powers Resolution is Constitutional; and I expressed no opinion as to that. I stated only that the controversy exists.

[Hosnon]

74. +1. nt.

[Javaman]

79. +1

You are my hero. :)

[boppers]

88. Nice post.

However, you might have noticed that I did not use the term "war", instead using "action", because the UN was quite clear on *not* sending in soldiers... which goes back to the whole debate about what constitutes war, and thus must be legally authorized by congress.

edit: missing a letter

[JDPriestly]

27. Obama should get with the program and let Congress either declare

war or not. Obama should follow the spirit of the Constitution.

Our Founding Fathers did not want lone rangers like GWB and Obama out there getting us into wars without debate and a decision by Congress.

Why can't Obama figure this out?

If there is a good reason for us to be in Libya, then Congress will vote for it. If not, they won't. This is not a decision that should be left to one man and his advisers.

[mvd]

58. I agree. No need for it to become such a gray area

If we're taking sides and involved militarily, that qualifies as a war to me.

[No Elephants]

68. +1 Something is very wrong when fundamental things become "gray" simply bc the WH

says something contrary to what has been common understanding for millenia.

A caveman who traveled to the cave of another tribe and lobbed a club on fire into the cave knew what he was doing. Now, suddenly, it's not an act of war unless he also marches into the cave?

After centuries, waterboarding did not cease to be clearly torture simply because Bushco (including its lawyers) denied it amounted to torture. Democrats were totally justified in condemning those who professed to be in doubt that waterboarding was really torture after all, or worse, those who flatly agreed with Bushco. Nor does attacking a sovereign nation by deadly or portentially deadly means on its own territory cease to be an act of war simply because the Obama WH says so.

[wordpix]

82. +1 Much of what I've seen & read convinces me this "non-war" is about BigOil

Otherwise, why are we bombing Libya and not other "bad" countries? :shrug:

Methinks the oil barons have taken O and his advisers down the path of "humanitarian mission," when it's really about OIL.

[n2doc]

29. "It is legal because I say so"

Last refuge of the despot

[izquierdista]

30. Obama, the Red Queen

Words mean exactly what he intends them to mean.

[Demeter]

34. That was Humpty Dumpty

Humpty Dumpty took the book, and looked at it carefully. `That seems to be done right -- ' he began.

`You're holding it upside down!' Alice interrupted.

`To be sure I was!' Humpty Dumpty said gaily, as she turned it round for him. `I thought it looked a little queer. As I was saying, that seems to be done right -- though I haven't time to look it over thoroughly just now -- and that shows that there are three hundred and sixty-four days when you might get un-birthday presents -- '

`Certainly,' said Alice.

`And only one for birthday presents, you know. There's glory for you!'

`I don't know what you mean by "glory,"' Alice said.

Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'

`But "glory" doesn't mean "a nice knock-down argument,"' Alice objected.

`When I use a word,' Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

`The question is,' said Alice, `whether you can make words mean so many different things.'

`The question is,' said Humpty Dumpty, `which is to be master - - that's all.'

Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. `They've a temper, some of them -- particularly verbs, they're the proudest -- adjectives you can do anything with, but not verbs -- however, I can manage the whole of them! Impenetrability! That's what I say!'

`Would you tell me, please,' said Alice `what that means?`

`Now you talk like a reasonable child,' said Humpty Dumpty, looking very much pleased. `I meant by "impenetrability" that we've had enough of that subject, and it would be just as well if you'd mention what you mean to do next, as I suppose you don't mean to stop here all the rest of your life.'

`That's a great deal to make one word mean,' Alice said in a thoughtful tone.

`When I make a word do a lot of work like that,' said Humpty Dumpty, `I always pay it extra.'

`Oh!' said Alice. She was too much puzzled to make any other remark.

`Ah, you should see `em come round me of a Saturday night,' Humpty Dumpty went on, wagging his head gravely from side to side: `for to get their wages, you know.'

(Alice didn't venture to ask what he paid them with; and so you see I can't tell you.)


http://www.alice-in-wonderland.net/books/2chpt6.html

[Demeter]

35. And We All Know What Happened to Humpty Dumpty

(he was a bad egg, too).

[izquierdista]

36. Must have been thinking of drone attacks

"I see!" said the Queen, who had been examining the roses, "off with their heads!"

[Demeter]

38. He's the whole book, both of the books!

including Alice and the Doormouse and the Mad Hatter...

[do me baby]

39. I support Obama unconditionally

He's my president.

[alarimer]

40. "My country right or wrong"

"Love it or leave it"

"You're either with us or against"

All of these statements (including yours) are equally brain-dead.

[L. Coyote]

53. no matter how many Americans he orders killed?

Or how many wars he gets into?

[No Elephants]

69. And so you supporrted Dummya unconditionally as well? How about supporting your country and

the Constitution your country is supposed to be run by?

Sorry, what you describe is not support; it's unthinking hero worship.

[MikeW]

41. apparently he forget that Congress can cut off all funding for it

something that he doesnt control

[robcon]

43. Hair-splitting on the definition of the Libyan War is shameful.

War is when you bomb things and people.

[DeSwiss]

47. ....

"The President does not have the 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." http://www.washingtonpost.com/opinions/the-cost-of-libyan-intervention/2011/03/22/ABYfx8CB_story.html">~Barack Obama, December 2007

[unkachuck]

48. "...forces in Libya do not amount to full-blown 'hostilities'..."

....Libya is beginning to smell like another perpetual war boondoggle; you just can't place your hopes with the MIC....in the beginning I was all for giving the Libyan people some space to try to boot a tyrant and form some sort of democratic institutions....

"...do not amount to full-blown 'hostilities'"...."We are acting lawfully,"

....but time has run out now that we're using chimp logic and rummy parsing....the Libyans have had their opportunity, time for us to move on....

[rug]

49. He should settle the matter once and for all and ask John Yoo.

[tekisui]

50. Koh is turning our just as bad.

[Exultant Democracy]

55. executive overreach was bad under bush it is still bad under obama. I reject an denounce this.

[cqo_000]

57. Obama's rebuttal: In order to defeat one's enemy, one has to become one's enemy.

[krabigirl]

60. frightening. nt

[Kurska]

62. Playing devil's advocate here but...

If we recognize the rebels as Libya's legit government and don't view it as a civil war, that precludes this as a war. Wars are fought between nations, not between loyalists and countries halfway across the world.

[No Elephants]

73. Huh?

[creon]

71. Does apply

The War Powers Act, more likely than not, does apply to Libya.

The War Powers Act is, according to some, unconstitutional. It is very unlikely thatthe SC would ever rule on that.

The operation in Libya will continue.

[No Elephants]

72. Please see Replies 70 and 65. The operation in Libya is illegal, whether it

continues or not.

Even Bush went to Congress for his frickin' wars.

[Javaman]

78. please don't justify his actions.

it's very unattractive.

[Javaman]

75. Nice when the president tells the congress what it can and can not do.

weeee...

:banghead:

weak argument mr. prez.

your right wing is showing.

[WatsonT]

83. So the change promised was entirely cosmetic

instead of a white guy doing this we now have a black guy doing it.

Hurray!

[Vidar]

89. Lie on, Obama, lie on!

[TMcCaleb]

90. France and Britain

were the first ones pushing this "intervention", let them do the heavy lifting.