Libya: Obama's Legal Calvinball

Jeh Johnson is a pretty smart lawyer, which is why he's Pentagon general counsel. He looks at the array of warships, aircraft and armed drones the U.S. devotes to the Libya war, notes the clock running out for unilateral administrative action under the War Powers Resolution and says: This requires congressional justification. The Office of Legal Counsel inside the Justice Department -- the arbiter of what is and is not legal for the executive branch to do -- looks at the same facts and the same law and says: Yuh-huh. President Obama, whose decision the open-ended Libya war was, takes all that analysis and says: Fuck that.

Obama's line is absurd on its face, as John Boehner contends in Charlie Savage's well-reported story. Ask anyone on the ground in Libya if missiles fired from the drones overhead represent "hostilities," the legal criterion at issue. QED. Not that I'm a lawyer, but I am able to watch and able to read, two qualities you'd have to lack to sign onto Obama's position. 

It only makes sense to deny the need for congressional approval on the Libya war if you don't think you'll win a vote. Guess what: that's why the Constitution invests Congress with the much-eroded power to declare war. Congress has shown it will vote for nearly any war -- even the Clinton-hating GOP Congress of 1999 didn't go so far as to stop the Kosovo war. When you can't convince Congress a war is worth fighting, it's really not worth fighting. 

As Matthew Yglesias has written, Congress abdicates its duties over warmaking all the time. If Boehner really wants to make this an issue, more power to him (sorry). No time like the present to reverse this sorry, decades-long trend. Similarly, Obama could still make some forceful case to Congress for the war. He might find Congress really isn't willing to stop the war. Whatever. Either course is preferable -- legally, and for the sake of a responsible decision -- to what Obama's doing now. 

There's going to be someone there who objects that we can't potentially interrupt the Libya war because it'll cause the NATO coalition to bust apart, grant Gadhafi victory from the jaws of defeat, etc. Obama shoulda thought of that before he charted this course, huh! If NATO can't prosecute the war without the U.S.' command-and-control AWACS (though NATO has its own), its midair refueling, its ships and its armed drones, perhaps that'll prompt NATO countries to rethink their underinvestment in defense, as Defense Secretary Robert Gates has urged. (Well, maybe not, if they can still free-ride on us, institutionally.) That's an honest internal debate NATO needs. And nothing the U.S. Congress does stops France and Britain from leading an anti-Gadhafi coalition. It won't do to say a mistake needs to continue because otherwise the second-order consequences of that mistake will compound.

And let's take the most cynical interpretation here. Maybe Obama would welcome congressional interruption of the war. That would give him the exit strategy he's so sorely lacked for Libya from day one. 

Comments

[fuster]

if you want to be cynical about it, Obama is likely to reap political benefit from an effort to challenge his action in Libya that originates in Congress and involves Republicans.

[J.]

Really? You're going to take the Sobbing Rich Boy's side here (hell, on any issue)? Come on. I don't like the fact that US planes are involved in Libya, but you've got to look past the facade that Congress puts up. The Repubs don't want to be "anti-war" and they don't want to be "pro-Obama," so their political calculus says "do nothing in the legislative body except criticize the White House."

This is a political circus that has nothing to do with the War Powers Act. Yes, Obama might welcome the congressional interruption of the war, which is why the Repubs won't give it to him. They're too fixated on getting him out of office than doing the right thing - acting like adults, performing the legislative tasks of governing the country that their constituents sent them to do.

[fuster]

Dear J,

it ain't personalities, it's what is Constitutional and preferable for the nation.

we generally like to have the government decide that joining a war that is optional and neither necessary nor urgent is a good idea... rather than have only the executive branch making the decision.

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What this incident in Norway proves is that terrorism, whether it be foreign of domestic, is a problem for the criminal justice system, and it cannot be eradicated through military force.