As I'm sure you know, President Obama started the Libyan action with a March 21 letter to Congress that cited the requirements of the War Powers Act ("I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action") but, when the May 20 deadline for withdrawal approached, he changed his mind about those requirements.
This morning, as I caught up on my reading, I saw that both the New York Times and the Washington Post have attacked the administration's position that the War Powers Act no longer applies to its military action in Libya. The Mainstream Media in a united front with CAA? I must be dreaming.
It could be that I'm suffering from delayed jet-lag, but my first thought was - "what country am I in today?" I can't remember the last time the MSM ganged up on a Democratic President, and especially not over an expansion of Presidential power at the expense of Congress.
For the NYT's part, they reported that Obama overruled the legal opinions of both the Justice Department and the Defense Department when he decided to continue action in Libya without the consent of Congress:
President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.
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.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.
But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.
Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
A White House spokesman, Eric Schultz, said there had been “a full airing of views within the administration and a robust process” that led Mr. Obama to his view that the Libya campaign was not covered by a provision of the War Powers Resolution that requires presidents to halt unauthorized hostilities after 60 days.
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The White House unveiled its interpretation of the War Powers Resolution in a package about Libya it sent to Congress late Wednesday. On Thursday, the House speaker, John A. Boehner, Republican of Ohio, demanded to know whether the Office of Legal Counsel had agreed.
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As the May 20 deadline approached, Mr. Johnson advocated stopping the drone strikes as a way to bolster the view that the remaining activities in support of NATO allies were not subject to the deadline, officials said. But Mr. Obama ultimately decided that there was no legal requirement to change anything about the military mission.
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The theory Mr. Obama embraced holds that American forces have not been in “hostilities” as envisioned by the War Powers Resolution at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to a supporting role providing refueling assistance and surveillance — although remotely piloted American drones are still periodically firing missiles.
The administration has also emphasized that there are no troops on the ground, that Libyan forces are unable to fire at them meaningfully and that the military mission is constrained from escalating by a United Nations Security Council resolution.
That report was, to say the least, unhelpful to the administration. But the WaPo's editorial board went much further, and was fully hostile to the administration's rationale about the minimal nature of the Libyan hostilities:
THE OBAMA administration’s depiction of its Libya venture as too halfhearted to be covered by the War Powers Resolution contains an unfortunately large dollop of truth. President Obama’s commitment is sufficiently halfhearted to undermine the NATO alliance. It is sufficiently halfhearted, and confused in its statement of purpose and its connection of ends to means, to give Moammar Gaddafi hope that he can hang on. It is not, however, so halfhearted as to justify the administration’s evasion of its legal duties under the war powers law.
-- snip --
The administration argued in a report to Congress released this week that it need not seek approval because the operations in Libya “are distinct from the kind of ‘hostilities’ contemplated” by the War Powers Act. “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,” the report states.
Problem is, the War Powers Act does not define “hostilities” as requiring boots on the ground or exchanges with hostile forces. The act, in fact, does not define hostilities, leaving a vacuum that Mr. Obama and his predecessors have exploited in self-serving ways. We believe that an honest appraisal of the activities that the United States continues to engage in would put the administration squarely within the purview of the War Powers Resolution. By the administration’s own account, these include airstrikes aimed at “suppress[ing] enemy air defense,” “occasional strikes by unmanned Predator” drones, and intelligence and logistical support that aid other NATO members in carrying out their strikes.
We supported Mr. Obama’s decision to join NATO allies in the U.N.- sanctioned effort to keep Libyan strongman Gaddafi from slaughtering his people. The president is right to sustain the effort until a regime less dangerous to its own people is installed, and he would be wise to heed U.S. allies and join in the effort more robustly. But it strikes us as fatuous to argue that the United States is not engaged in hostilities, given that the NATO bombing campaign could not be taking place without active U.S. support.
Mr. Obama is not the first president to pretend to comply while skirting the law’s most important provision, but precedent does not make the practice more appealing.
Read the whole thing here.
Did the WaPo just call Obama's position halfhearted, confused, undermining of the NATO alliance, and an evasion of his legal duty? Yes, and all in the first paragraph. And then they added that he is dishonestly quibbling about the definition of "hostilities" and making a fatuous argument to skirt the War Powers Act's most important provision.
I'm going to lie down until the dizziness passes. If the WaPo's editorial is still there after I wake up, then I'll know that we have passed some kind of political milestone.