Obama's Bush-Like Approach to Executive Power

The president's reasons for skirting the War Powers Resolution sound a lot like his predecessor's justifications for torture

Epps_WarPowers_6-20_banner.jpgOver the weekend, I got the chance to ask a panel of former executive-branch lawyers the question that's been bugging me.

In 2002, the Bush administration really, really wanted to torture terrorism suspects. But torture was and is against international and American law. The lawyers came up with a nifty idea: they would redefine torture. Under applicable law, to torture means to inflict "severe physical or mental pain or suffering." But from now on, as Jay S. Bybee of the Office of Legal Counsel wrote, that "suffering" "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Paging Jack Bauer.

In 2011, the Obama Administration really really wanted to take part in the NATO mission supporting rebels in Libya. The War Powers Resolution (WPR) requires the President to ask Congress for authorization within 60 days of introducing U.S. Armed Forces into "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." The administration didn't want to do that, so a couple of its lawyers suggested redefining "hostilities." Here's the Administration's explanation, from a report submitted to House Speaker John Boehner in mid-June:

The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. 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.

My question was: Is there a significant difference between these two examples?

What practical difference does it make if the administration accepts the law if it then juggles the definitions to avoid it?

The lawyers I spoke to argued that there are some differences. First, they said, the administration's definition of "hostilities" is one that has been discussed almost since the WPR was adopted in 1973; Bybee's definition of "suffering" was drawn from an irrelevant federal statute that concerns "an emergency medical condition for the purpose of providing health benefits." Peter Shane of Ohio State University, who served in the Carter Administration Office of Legal Counsel, crisply stated, "a first-year law student handing in that answer in a legislation class would have gotten a failing grade." Second, they argued, the Bush Administration always maintained that, whether it violated the law or not, all laws restricting the Commander in Chief from pursuing terrorism were unconstitutional. By contrast, this administration has consistently said that it recognizes the WPR as binding law. Finally, of course, the torture memo was secret when issued (and some other such memos still are); the public is getting the chance to debate the Obama rationale in real time.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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