White House’s ‘Libya Isn’t A War-War’ Defense Not Going Over Well In Congress

The White House's assertion that Libya isn't covered by the War Powers Act isn't being accepted on Capitol Hill.

As I noted yesterday, the Obama Administration responded to Congressional demands for more information regarding the mission in Libya by saying that the War Powers Act doesn’t apply because American forces are not engaged in hostilities in or near Libya. Not surprisingly, that explanation has not gone over well among Congressional critics of the Administration’s policy:

President Obama’s assertion that he does not need congressional authorization for the military operation in Libya met with criticism on Capitol Hill Thursday, as some lawmakers said Obama’s logic defied both the dictionary and the law.

“It just doesn’t pass the straight-face test in my view,” said House Speaker John A. Boehner (R-Ohio) in a morning news conference at the Capitol.

(….)

“You’re flying over Libya, participating in bombing Libya. It seems hostile to me,” said Rep. Brad Sherman (D-Calif.), in a telephone interview. “If any other country were flying over the United States for the purpose of bombing our territory, we would regard that as being introduced into hostilities.”

Obama’s argument was rejected by Boehner, who previously had appeared intent on avoiding a confrontation over Libya until a number of Republicans and Democrats turned against the operation this month.

“The White House says there are no hostilities taking place, yet we’ve got drone attacks underway. We’re spending $10 million a day as part of an effort to drop bombs on Gaddafi’s compounds,” Boehner said.

Boehner said he still hoped to receive further clarification from the White House about the U.S.’s goals in Libya. Asked what the House is prepared to do in the case that it does not receive a satisfactory answer from Obama, Boehner declined to go into detail, saying only that “the House has options.”

In the Senate Thursday, even a major supporter of the Libya campaign made a speech criticizing Obama. Sen. John McCain (R-Ariz.) called the administration’s argument “a confusing breach of common sense.”

“I am no legal scholar, but I find it hard to swallow that U.S. armed forces dropping bombs and killing enemy personnel in a foreign country doesn’t amount to a state of hostilities,” McCain said on the Senate floor. “Unfortunately, this only adds more confusion to our already confusing policy in Libya

In a separate interview today, Speaker Boehner went so far as to say that the House may consider cutting off funding for the Libya mission if the Administration does not further clarify its position:

House Speaker John Boehner threatened to cut off funding for U.S. involvement in Libya if he’s not satisfied with further White House explanation about the NATO-led military campaign.

The Ohio Republican said he is waiting for the White House Office of Legal Counsel to report by Friday whether it agrees with Obama’s position released yesterday that his actions are legal. If the office does not agree, Boehner said the House has legislative options.

“We’re looking at those options, and my guess is that next week we may be prepared to move on those options based on the answers to the questions that we get,” Boehner said.

But “the ultimate option is…the Congress has the power of the purse. And certainly that is an option as well,” Boehner said.

House Majority Leader Eric Cantor seemed to echo Boehner when he hinted in a floor speech that the House may take up such a defunding bill as early as next week depending on what steps the Administration takes next. The White House, meanwhile, has basically said it doesn’t intend to respond any further to the House:

White House press secretary Jay Carney said that the president “absolutely respects” Congress’s desire to be consulted on Libya, but after sending a 32-page report to Congress outlining the White House’s reasons for believing that Obama has acted consistently with the War Powers Resolution, Carney said that should suffice.

“I don’t anticipate further elucidation of our legal reasoning because I think it was quite clear,” Carney said.

So, it would seem the ball is not back in Congress’s court and we may be headed for some kind of real confrontation between the House and the White House over the mission in Libya. Frankly, it’s already gone further than I expected. Usually, Congress just rolls over and plays dead on these sorts of things but it’s clear that the hyperpartisan atmosphere in Washington, combined with the fact that the Libya mission remains decidedly unpopular, have emboldened Boehner and others to actually take a stand here.

If that’s the case, I’m glad to see it. It’s been far too long, since the passage of the War Powers Act really, that Congress has acted in any decisive manner to try to reign in the Executive Branch’s power grabs in the war making department. Regardless of the outcome of this particular policy dispute, the fact that Congress, or at least part of it, is acting with some backbone here is a welcome sight, especially in light of the specious reasoning that the Administration uses in its report.

Conor Freidersdorf demolishes the White House position quite thoroughly:

President Obama’s argument for why he is in compliance with the War Powers Resolution is mostly made up of irrelevant assertions. It doesn’t matter that our Predator drone strikes are limited, or that we’re mostly supporting the armed forces of other nations, or acting as part of an international body, or that the war was launched to prevent a humanitarian disaster. Nor does it matter that “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces.” None of those things gets Obama out of the requirements of this legislation, nor is there any hint in its language that they would — in fact, insofar as it’s specified, various provisions are triggered by merely being in another country’s airspace or accompanying forces from other nations while they are engaged in hostilities. The notion that we’re engaged in a special kind of post-NATO-handover “hostilities” not covered by the War Powers Resolution is unsupported, and, even ignoring that, President Obama indisputably violated at least one other provision of the legislation before the NATO handover

Moreover, as Rep. Bill Young (R-Fla.) noted two weeks ago:

Article I, section 9 of the Constitution, in part, reads, “No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.”… What I’m wondering is: Where is the money to pay for the Libyan operation coming from? What account is it coming from? Is it coming out of personnel costs–soldiers’ pay? Is it coming out of medical care? Is it coming out of the training for our troops? What accounts are being used?

An entirely legitimate question, it would seem, and the idea that the President can engage in hostilities with a nation that has not attacked us and poses no threat to our interests, and then fund the military war without Congressional appropriations seems to defy any reasonable reading of the Constitution. It would have been very simple for the White House to seek authorization for the Libyan action, and it probably would’ve been approved too. Instead, the President chose not to do that any rely upon a United Nations resolution and a specious legal argument to argue that he doesn’t need to get Congressional permission to put American troops in harms way. It’s a dangerous precedent, and it’s good to see Congress at least giving some push back to this latest Executive power grab.

 

FILED UNDER: Barack Obama, Congress, Military Affairs, National Security, Politicians, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Rob in CT says:

    Well, good.

  2. PD Shaw says:

    It would have been very simple for the White House to seek authorization for the Libyan action, and it probably would’ve been approved too.

    This seems true, but I’m increasingly wondering why authorization hasn’t been sought. I’m left with the theory that any authorization would likely be limited in time and Obama doesn’t want to concede Congressional authority on this engagement because he’s not sure how long this is going to last.

  3. michael reynolds says:

    So I guess the mission to get Osama out of Pakistan was a war, too? How about SEAL or Delta or CIA missions in foreign countries where hostilities exist? Are those wars?

    What if we provide targeting data to the Israelis to take out Hamas missiles? If we do it over the course of several months is that a war? How is that different than what we’re doing in Libya?

  4. Steve Verdon says:

    So I guess the mission to get Osama out of Pakistan was a war, too?

    Not according to the information Doug posted yesterday. Such an operation would not result in 60 days of hostilities.

    How about SEAL or Delta or CIA missions in foreign countries where hostilities exist? Are those wars?

    There is that 60 day thingy.

    What if we provide targeting data to the Israelis to take out Hamas missiles?

    I don’t think providing intelligence to allies would qualify.

  5. James Joyner says:

    @michael reynolds: While I think the War Powers Act likely unconstitutional on a number of levels, I’d argue that your first two examples are wars (because American troops are in harm’s way and/or actively engaging an opposing force) and your second example isn’t. The first two wouldn’t trigger WPA because of short duration.

    Yes, we’re at war in Libya. It’s a pretty minor war in the grand scheme of things but we’ve flown lots of sorties and shot lots of ordnance. I don’t think shifting mostly into a logistical and intel role constitutes ending it, any more than declaring “major combat operations are over” ended Iraq.

  6. So I guess the mission to get Osama out of Pakistan was a war, too?

    The operation against bin Laden was authorized by the AUMF passed by Congress in October 2001

  7. OzarkHillbilly (used to be tom p) says:

    So I guess the mission to get Osama out of Pakistan was a war, too?

    Ahhh yes, a permanent state of war, what every American wants. Michael, I don’t often disagree with you, but this time I do.

  8. DavidL says:

    The War Powers Act is unworkable. The WPA holds that the President may not wage war for more than sixty days, without the active consent of Congress. In practice the President can wage war as long as Congress does not proactively object to it. B.J. Clinton’s War on Yugoslavia was one such example. Clinton’s war lasted over sixty days but never got approved by Congress.

    The only way Congress could have enforced the WPA with rspect to Clinton would have been to impeach and remove him from office. That was not likely to happen. Unless both the House and Senate can grow a pair, it will not happen with this President either.

  9. george says:

    It really boggles the imagination to come up with some rational that makes dropping bombs on another country an act of peace … perhaps its time to re-read 1984 to get into proper doublespeak mode.

    This is the kind of thing that is wrong no matter which president does it – and if one does it, all that follow will do it, of both parties.

  10. Davebo says:

    This seems true, but I’m increasingly wondering why authorization hasn’t been sought.

    And how exactly would he seek it and why? For the 50th time, it’s up to Congress to invoke the War Powers Act per the act itself. Don’t take my word for it, ask the ghost of Ronald Reagan.

    Now I’m fairly certain that most serving in Congress know this (or at least have a staffer with a basic understanding of the act).

    But hey, why fulfill your sworn constitutional duty when you use it as a political talking point. It obviously works, even with lawyers and PHD’s who should know better.

  11. A voice from another precinct says:

    Is it possible that Obama is setting up the situation for future criticisms of “doing nothing” (as was the complaint about Libya) to be met with the response that if Congress wants action (say, in Syria–oh, maybe next week) that they should prepare a dec;laration of war so that the Commander in Chief will know what level of action they are willing to commit to? I don’t believe that Obama is either smart or conniving enough to think this way, but I am at the point of believing that moving into more of a “doesn’t play well with the other children” mode might be more useful than what he’s been doing.

    On the other hand, I have no particular commitment to his reelection either. The problem of the GOP having no particularly credible leaders on the horizon only means that we will continue to get the government we deserve.

  12. michael reynolds says:

    Actually, i think it’s pretty easy to envision the US providing targeting assistance to, say, the Israelis, for a period longer than 60 days. I wouldn’t be surprised if we share that kind of data with them on a regular basis.

    Let’s try another example. Let’s say we provide targeting, intel, etc… to various nations with military in pirate-infested waters. Are we watching pirate activity in the red sea? I would assume so.

    I’m not arguing Congress shouldn’t be involved, I’m suggesting there are now more shades of gray between “war” and “not war.”

  13. ponce says:

    Actually, i think it’s pretty easy to envision the US providing targeting assistance to, say, the Israelis, for a period longer than 60 days.

    The CIA and the US military allegedly provided Saddam Husein with the location of Iranian targets for his WMD attacks.

  14. Wayne says:

    People are acting like the President of the U.S. is no longer suppose to be the leader of the U.S. It is up to congress to tell the President if they want action taken against Syria or any other country. It is up to congress to write the health care bill and just send it to his desk. It is up to Congress to come up with a legitimate budget.

    The way it is supposed to work for the President and has often been done in the past is this. If he determines that sustain military operation against a country is needed, he goes to Congress and convince them to give him authority to do so. The resolution is generally done in such a lousy way so politicians can claim they did or did not intend to support whatever actions the POTUS does end up doing . However he get a resolution never the less.

    His administration gets involved in what they want out of key pieces of legislation like the health care bill. Does the President actually write it? No but he sure lets them know what he wants out and will sign off of in key legislation.

    He submits a serious budget fully aware that it will be toss. However Congress then knows what his priorities are and often incorporates some of them in their budget so he will sign off on it.

    I guess when the POTUS is a Democrat with little leadership skills, his supporters will look at Congress to do his job.

  15. Wayne says:

    Often as any country does, the U.S. is involved in covert and clandestine operations like spying. When operatives get caught it is an embarrassment and cost them in the international community. That is why some of those who get caught are often disavowed by their governments. It is the nature of that type of business.

    However covert and clandestine operations are not the same beast as overt operations. It is impractical and unrealistic to expect to treat them the same way including what rules pertains to each. In the U.S. case Congress is still involved but they understandably do not air them in public.

    Perhaps you are one of those purest who think we shouldn’t keep secrets, spy on others or deal with shady characters to gain Intel. Doing so would put us at a great disadvantage and result in many more 911 type events.

  16. Eric Florack says:

    The operation against bin Laden was authorized by the AUMF passed by Congress in October 2001

    Yeah. Funny how that gets forgotten.

    It really boggles the imagination to come up with some rational that makes dropping bombs on another country an act of peace …

    That’s because you’ve never understood several basic points:

    Peace, real, lasting peace, is not a product of disavowing war, or thinking peaceful thoughts, singing Koom By Yah around the campire, etc.

    Nor is it the product of negotiated settlements.
    Consider; does anyone thing we can negotiate with AlQueida, as an example? Chamberlain tried negotiations with Hitler. We see how that went. Can anyone actually point to a war that all the diplomacy at the UN, has actually prevented?

    Peace is the product of winning the war brought against you, with sufficient force to prevent any ideas of trying it again.
    Examples:
    World war II was the direct result of the negotiated settlement imposed following WWI.
    The current Korean instability is the product of negotiating away our efforts in the original Korean War. (To say nothing of negotiating away the millions of lives spent trapped in that hell hole of socialism.)
    Consider, on the other hand our victories over Japan and Germany and how decisive they were , and how good and peaceful an ally each has been following that victory.

    Peace, therefore, is not the absence of war. It is rather achieved as a result of WINNING the war in a decisive and total manner. Peace, you see, comes from taking away the enemies willingness to fight.

    As an aside…That Robert Gates, yesterday coughed up the idea that we should move away from “loaded words” like “winning and Losing” tells me all I need to know about that jackass.

  17. Ben Wolf says:

    Erick,

    World War II was a unique series of events in history, not a model to follow for perpituity. Korea was a negotiated settlement because there was no other option. You may recall that human waves of Chinese forced our armies out of the North and held them out until the end of the war.

    You reference our victories over Germany and Japan without questioning why their peoples capitulated. It wasn’t because of atom bombs; if Canada invaded the Midwest would you surrender, regardless of what the enemy threatened you with?

    Germany and Japan surrendered because, despite the parades, the sloganeering and the propaganda, their respective regimes enjoyed broad but shallow public support. They blamed and resented their leaders, concluding after years of war that surrender to the allies might leave them better off. If their peoples had been truly indoctrinated in Nazi and Imperial ideology, strong popular resistance movements would have continued even after their governments had surrendered.

    This was never a possibility in Vietnam, which had a multi-millenial history of resisting any foreign occupations, nor is it possibility in the modern Middle East, where populations have demonstrated sufficient fervor to resist any degree of military force. In point of fact, the more aggressively we confront our enemies in Iraq and Afghanistan the more resistance we meet.

    The objective lesson of history is that wars can overthrow governments, but conquering their peoples ultimately requires a political settlement. Military power has very real limits, which our politicians and generals have yet to comprehend.

  18. george says:

    Peace is the product of winning the war brought against you, with sufficient force to prevent any ideas of trying it again.

    So if the USSR had dropped a nuke on New York during the cold war it would have been interpreted as an act of peace?

    I think you’re confusing the conditions necessary for peace (which I agree require strength – countries that cannot defend themselves haven’t done particularly well historically) with actions. Dropping a bomb might lead to peace under some circumstances; the act itself however is one of war.

    Or put it this way – vigorous exercise might well let someone sleep better at nights. But the exercise in itself is not sleep.

  19. Wayne says:

    Ben if the Emperor of Japan didn’t surrender the Japanese would have fought tooth and nail for him. They did prior to atomic bombs and showed no indication of doing anything else afterword. We killed many more people bombs Japan with conventional bombs than we did with the two atomic ones. The Emperor knew the ultimate outcome and spared his people. The U.S. was wise in how they handled it afterwards. If we had had gone in there and been abusive toward them, I’m sure the populace would have reacted violently.

    Vietnam was a Politically Correct politically conducted war. The military wasn’t allowed to conduct the war in a typical military fashion including taking the actions needed to destroy the enemies will to fight.

    Korean War was where how we conduct wars change. It went from using the military to conduct wars in order to settle disputes where diplomacy failed to conducting wars as a diplomatic tool. There a nuance there that hard to explain but it is very important.
    We went into Korea and after getting halfway square away we made large military advancement that push them up to the some river that I forget. The Chinese warn us not to push it that far and came over in masses when we did. After that the politicians were unwilling to go to all-out war with China which was what was needed although would have lead to an escalation. They were pretty much skittish in making pretty much any significant military gains out of fear of escalating the war further. When you are afraid to win a war, it is unlikely you will. We fought for a stalemate and that’s what we got.

    After Korea our approach to war, what we use war for and how we conduct war changed. Yes we fought to stalemates prior but it didn’t change our core war concepts. There are many books out there that explains it and it takes at least a book size work to do it.

  20. wr says:

    Wayne — In Vietnam, the “enemy” was fighting for their homeland. We were fighting for… nothing. Do you really think our will to fight was ever going to be greater than theirs?

    But for the moment, let’s say you’re right. How much more napalm should we have dropped? What else could we have done to disrupt their will? Should we have started killing innocent civlllians in villages? Oh, wait, we did that. So how could we escalate to break their will? Randomly kidnap and torture children? Spray body parts over the landscape? What exactly is this wonderful fighting regime that we denied ourselves out of political correctness?

  21. Joel says:

    The idea that Germany and Japan’s governments had massive losses in popular support toward the end of the war isn’t really true. There was much opposition among the military aristocracy in Japan to the Emperor’s surrender, the fanaticism of Japan’s soldiers is legendary, and even today much of Japan’s population remains in denial or unaware of the terrors of that regime. In Germany, a very large proportion of the citizens either kept faith in the Fuhrer until near the very end or saw themselves as the victims in the war.

  22. Joel says:

    That said, we do need to be cautious about drawing analogies from World War II because it’s so exceptional in many ways.

  23. Joel says:

    One more thing – while Germans were more willing to surrender or allow occupation in the west, there was in fact quite a lot of civilian resistance against the Russian advance, largely because the Russian army was so brutal in its vengeful rape, pillaging, and slaughter.

  24. Qahdafi has been on my better-off-dead list since at least the 1980’s. He’s just that bad of a “blackhat.” But realities of international politics and diplomacy have meant that we’ve let him stay alive lo all these intervening decades.

    Pres. Bush (#43) even managed to get the guy, after publicly naming Libya as part of the Axis of Evil and then taking down Saddam’s Iraq in about a week, to give up his WMD programs and start playing responsible adult (as much as the murderous tyrant was capable of portraying, anyhow).

    So going on the warpath and trying to take out Qahdafi (while saying we’re doing something else, but that’s another argument) just doesn’t make sense to me from an American perspective. Does. Not. Compute. Arab Spring or no, we had Muammar Qahdafi in the box we wanted him in, not troubling us and not looking to trouble us.

    And now, any other dictator with WMD has got to wondering how it’s to his benefit to give that up.

    So how does this make sense?

    I’ve quoted you and linked to you here.

  25. roger says:

    With regard to Japan at the end of the war, there was an attempted coup on August 14-15, 1945, known as the Kyujo Incident, by some of the Japanese military to prevent the surrender from happening. It ultimately failed because they were not able to gain wider support.

  26. Wayne says:

    WR
    IMO we should have never been in Vietnam and we shouldn’t have been backing that corrupt government. However one’s opinion on wither we should have been or should be in a war is irrelevant (beyond actually being in it) on how a war should be conducted or how it could be won. There have been many times I disagree with my commander’s goals and even his plans. However once the decision is made, it is my responsibility to find ways to make it work.

    First it isn’t a simple matter of how much ordinance is used but how it is used and for what purpose.

    Second the military didn’t have free reign to go where they needed to go. They were not allowed to invade and conquer North Vietnam. They were allowed some bombing raids but some key targets were off limit. They were not allowed to go after the enemy hiding in other countries like Laos and Cambodia except for relatively small supposedly secret raids. They were afraid that something like what happen in Korea would happen if the forces were allowed to go where they needed to go.

    So there strategy was key the enemy and push them off the “hill”. Withdraw so the enemy would rebuild then do it again. They were force to fight a so call “defensive” war. The great civilian leadership and mentality was “wars are determined by who kills the most enemies and who uses the most ordinances”. That is total B.S. You win by either destroying their ability and\or their will to conduct war. Goals and objective in wars should be orientated to destroy their ability and\or will to conduct war. Not being allowed to do that allows the enemy to fight forever with little consequences.

  27. george says:

    Goals and objective in wars should be orientated to destroy their ability and\or will to conduct war. Not being allowed to do that allows the enemy to fight forever with little consequences.

    But if pushing North Vietnam to the hilt would have brought in the Chinese, and from their possibly involve the Soviets, would it have military sense to do so? Militarily, was Vietnam worth a world war which even if victorious might well have involved many US cities being hit by nuclear weapons? I think the decision not to push hard into North Vietnam was in fact partially a military calculation that doing so would bring into play much larger forces; that is, that the gain wasn’t worth the cost.

    And it seems to have been the correct one – Vietnam and China are now trading partners, the USSR is dissolved, and no American cities have been nuked.

  28. Ben Wolf says:

    The idea the Japanse would have done whatever the emperor commanded of them has been, well, rather overblown. During the war we propagandized them as automatons programmed to obey authority, to kill and die when told. Unfortunately that idea continues today. Popular support for the militarists was far weaker than believed at the time.

    I highly recommend John Dower’s book, Embracing Defeat: Japan in the Wake of World War II to anyone wanting an objective historical perspective on this subject.

  29. Ignoring Congress is a win-win of a strategy. (Oh wait: I meant just the opposite.)

    Not to be too hung-up on process when results do matter, but since the only oaths or vows I’ve ever publicly sworn have been (in order) to the Constitution and to Madame-At-Arms, I take Constitutional processes pretty seriously. (That’s just how I roll.) But let’s look at results as well:

    Qahdafi has been on my better-off-dead list since at least the 1980’s. He’s just that bad of a “blackhat.” But realities of international politics and diplomacy have meant that we’ve let him stay alive lo all these intervening decades.

    Pres. Bush (#43) even managed to get the guy, after publicly naming Libya as part of the Axis of Evil and then taking down Saddam’s Iraq in about a week, to give up his WMD programs and start playing responsible adult (as much as the murderous tyrant was capable of portraying, anyhow).

    So going on the warpath and trying to take out Qahdafi (while saying we’re doing something else, but that’s another argument) just doesn’t make sense to me from an American perspective. Does. Not. Compute. Arab Spring or no, we had Muammar Qahdafi in the box we wanted him in, not troubling us and not looking to trouble us.

    And now, any other dictator with WMD has got to wondering how it’s to his benefit to give that up.

    So how does this make sense?

    I’ve quoted you and linked to you here.