Bombing Libya Without Congressional Approval

The administration's attempt to ignore the War Powers Resolution of 1973.

If a recent report by The New York Times is accurate, the Obama administration is attempting to figure out a way to continue bombing Libya without the Congressional approval required by the War Powers Resolution of 1973. The act requires the president to terminate the prosecution of such activities 60 days after formal notification of Congress regarding the deployment of forces "into hostilities or into situation (sic) where imminent involvement in hostilities is clearly indicated by the circumstances." The 60 day period ends on May 20th.

“Mindful of the passage of time including the end of the two-month period, we are in the process of reviewing our role, and the president will be making decisions going forward in terms of what he sees as appropriate for us to do,” said James Steinberg, the deputy secretary of state, in response to a question about the deadline at a Senate Foreign Relations Committee hearing last Thursday. Steinberg also provided written testimony to the Committee outlining U.S. and NATO objectives in the country in which he concluded the "way forward is not easy. It will take sustained effort. And it will take continued close consultation with Congress."

Yet as the Times reports, Congress has little interest in enforcing the resolution, and Pentagon officials admitted the issue has been turned over to lawyers who are ostensibly formulating several ideas that will essentially render the act meaningless. These include restricting the use of Predator drones to surveillance instead of attacks, and/or ordering a complete halt to all operations on a temporary basis, after which, some administration attorneys contend, the 60-day time limit would be re-set. One is left to imagine what period of time--days, hours, minutes--qualifies as an acceptable definition of "complete halt."

Perhaps it is all irrelevant. If one reads Section 2 paragraph (c) of the War Powers Resolution, it would seem the president has already violated it--with one possible exception. According to that paragraph, the president can only introduce our armed forces into "hostilities" or "imminent hostilities" under three condtions: "(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

With respect to clause number one, there is no question we have not declared war, which requires Congressional authorization. In fact, what we are prosecuting in Libya, according to the Obama administration itself, is a "kinetic military operation." With respect to clause number three, there is no national emergency remotely associated with our Libyan adventure.

Thus, we are left with clause number two. Legal analysts contend that the president received "specific statutory authorization" when the United Nations Security Council voted to initiate military action under resolution 1973, the essence of which grants NATO the power to prevent the humanitarian catastrophe engendered by Moammar Gaddafi's determination to "go house to house," to rid his country of anti-government elements.

Yet when the president used this rationale to move forward on Libya, bipartisan criticism ensued. Democrats Jerrold Nadler (D-NY), Barbara Lee (D-CA) and Michael E. Capuano (D-MA), along with Republicans Richard G. Lugar (R-IN), Rand Paul (R-KY), and Roscoe G. Bartlett (R-MD) all contended that Mr. Obama had exceeded his authority. “When there is no imminent threat to our country, he cannot launch strikes without authorization from the American people, through our elected representatives in Congress,” wrote Rep. Justin Amash (R-MI) on his Facebook page. A March 18th Washington Post editorial determined that in "bowing to the will of the U.N. Security Council, President Obama is diluting the sovereign power of the United States," further noting that under its own rules, the "United Nations cannot legally authorize military action to shape the internal affairs of member states."

Perhaps. But history says otherwise. From Harry Truman going to war in Korea in 1950, to LBJ and Richard Nixon's prosecution of Vietnam (which precipitated the War Powers Resolution), through 1973, to Bush 41's intervention in Somalia in 1992 and Bill Clinton's bombing of Kosovo in 1999, presidents have acted without Congressional approval. Thus a 60-year historical precedent has been established. New York University law professor David Golove illuminates the conundrum. “There’s no more dramatic example of the ‘living Constitution’ than in this area,” he said last March.

On Saturday, Sen. John McCain (R-AZ), the number one Republican on the Senate Armed Services Committee, was even more direct. "No president has ever recognized the constitutionality of the War Powers Act, and neither do I," he said. Sen. Richard Lugar, top Republican on the Senate Foreign Relations Committee, disagreed. "If the administration seeks to continue our military involvement in Libya, it is incumbent that they seek and secure congressional authorization," he warned.

Ironically, or perhaps one might say predictably, Mr. Obama's penchant for being on both sides of an issue, even as he is held largely unaccountable by the mainstream media, is once again in evidence. In a 2007 interview with the Boston Globe, candidate Obama contended that the President "does not have 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," and that "military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action."

Until now, apparently. Thus it was no surprise when, last Friday, the White House announced it will continue military operations in Libya as long as Moammar Gaddafi "keeps attacking his people." White House spokesman Jay Carney said that the administration was "in regular communications with Congress and that will continue." Presumably, this supersedes the president's original contention that America's active military role in our Libyan adventure would last "a matter of days, not weeks." Noting the president's use of modifiers, most recently on display in El Paso, when he contended that America's border fence was "basically" complete, despite two thirds of our southern border remaining unfenced, the key word here may be "active."

Thus the question arises. Does the president need the Congressional authorization required by the War Powers Resolution of 1973 to continue "passive" military action in Libya? It should be noted that the president complied with the act's provision to notify Congress within 48 hours of beginning military operations. Does complying with one part of the act require him to comply with all of it?

More importantly, will Congress force the president's hand? As of now, it seems unlikely. "At this stage, congressional leaders have not committed to a debate, and it is uncertain whether majorities could be assembled for any particular resolution," said Sen Lugar. Senate Foreign Relations Committee chairman John Kerry (D-MA) concurred. "I'm not hearing from my colleagues that they feel the War Powers situation is currently in play because we're deferring to NATO," he said, adding that there's nothing scheduled on his committee, where any resolution would have to originate, nor is there any debate scheduled for the Senate floor.

Rep. Dennis Kucinich (D-OH), an anti-war activist, has other ideas. "The president, like him or not, violated the Constitution by taking us into a war against Libya without having the consent of Congress. That's very clear," Kucinich said. "The War Powers Act gives us an opportunity to be able to have a vote on it."

Maybe, but right now reality intrudes. On April 5th, the Sen. Rand Paul (R-KY) forced the Senate to vote on a non-binding resolution expressing opposition to the administration's decision to go to war in Libya. Sen. Harry Reid (D-NV) countered with a vote to table the resolution, ostensibly to keep the Senate focused on a small business bill and, by extension, the ongoing budget battle currently consuming Congress. It passed by a 90-10 margin, will all ten dissenters coming from the Republican side of the aisle. Nothing has changed since, except that the budget battle has grown even more intense as Congress wrestles with whether or not to raise the country's debt ceiling.

Until that issue is resolved, expect the president to maintain a free hand to do what he wants in Libya, with or without the legal machinations contemplated by administration attorneys. They only matter if Congress is willing to challenge them. As of now, Congress does not appear to be up to the task.

Arnold Ahlert is a contributing columnist to the conservative website