Obama Clashes with Congress over Libya, War Powers Act

News hailing from Washington that President Barack Obama rejected the advice of Caroline Krass, the acting head of the Office of Legal Counsel within the Justice Department, and Jeh C. Johnson, the Pentagon’s general counsel, concerning the American military’s role in Libya has reignited the decades-long debate over which branch of government has authority to wage war under the War Powers Act.

Passed in 1973, the War Powers Act provides that a president cannot commit American forces to a conflict for more than 60 days without seeking the approval of Congress through a resolution allowing force or the formal declaration of war. The Act was passed in large measure because both the Korean and Vietnam conflicts had been waged by presidential fiat without the advice or consent of Congress.

Since its enactment, notable conflicts implicating the War Powers Act have included President Ronald Reagan’s decision to commit Marines to Beirut during the period of civil unrest in Lebanon in 1983, Operation Desert Storm under President George H.W. Bush in 1991, and the Somalia police action under President Bill Clinton in 1994.

May 20 marked the 60th day since American forces under NATO auspices joined in providing air support to Libyan rebels seeking to depose longtime dictator Muammar Qaddafi.

To date, the president’s refusal to seek congressional authority has drawn rumblings from leaders within both parties, including House Speaker John Boehner, R-Ohio, who now questions the Obama administration’s rationale that it did not need Congressional approval since American forces are only in a support role under the NATO banner.

The flaw in the administration’s argument is that NATO arguably is a military cooperative in name only, as recent figures show that better than two-thirds of NATO forces consist of American military personnel. In its 38-page memorandum sent to Congress justifying the president’s actions, the White House argues that “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.”

While the administration’s nuanced response still raises legitimate constitutional questions, the immediate political consequences of the president’s decision is all but certain to ignite unrelenting attacks from Republicans who will question why the president is ignoring the advice of counsel. That is the same charge Democrats unrelentingly levied against the George W. Bush administration, particularly with respect to the issue of the use of torture against captured enemy combatants.

Jack L. Goldsmith, former head of the Office of Legal Counsel under Bush, fears that the Obama administration’s recent move will give even greater discretion to future presidents in an era in which the use of remote-controlled weapons could be justified by the lack of physical involvement by military personnel. Goldsmith averred that “the administration’s theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution’s time limits.”

A second and perhaps more pertinent political consequence for the president is that a number of formerly hawkish Republicans have now joined the chorus emanating from the left wing of the Democrat Party in questioning the efficacy of waging war in Afghanistan, Iraq and Libya. Those wars are costing taxpayers billions of dollars each month, despite the fact that the original rationale for war — to kill Osama Bin Laden and weaken his Al-Qaeda network — has seemingly been accomplished.

Chuck Hobbs is a Senior Writer for Politic365 and trial lawyer based in Tallahassee, Florida. In 2011, he was nominated by the Tallahassee Democrat for a Pulitzer Prize in Commentary. Hobbs won first place honors in the 2010 Florida Bar Media Awards. Reach him at chuck_hobbs@yahoo.com

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