Obama's Bush-Like Approach to Executive Power

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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.

I think those differences are significant; but I am not sure they would convince the ordinary American.

I am not sure they convince me.

First, what practical difference does it make if the administration accepts the law if it then juggles the definitions to avoid it? The result is nonetheless to expand the executive's unchecked authority over the use of military force. Second, how convincing is the current administration's distinction? The word "hostilities," in ordinary use, means "acts of warfare." In most parts of the world, dropping missiles out of Predator drones is seen as such an act (ask the Taliban), and that, among other things is what the U.S. military is doing in Libya.

The administration has given the term what lawyers call a "purposive" interpretation. In this kind of reasoning, a lawyer deduces the meaning of a term from the purpose of the body using it. A safety regulation banning "vehicles in the park" might formally cover Little Sluggo's matchbox car set, but surely banning toys was not the purpose of the law. In the WPR case, they reason, the purpose of the War Powers Resolution is first to keep U.S. forces out of escalating conflicts like Vietnam and second to reduce U.S. casualties. Since the the Libya mission doesn't present those possibilities, it isn't "hostilities."

The definition of torture, in contrast, works directly against the aim of U.S. law. Those laws aim to prevent torture; thus, reading its definition as narrowly as possible is an attempt to sabotage, not comply with, the intent of the statute's framers.

But are these differences without a distinction? Who says the WPR is concerned solely with preventing escalation and U.S. casualties? Isn't it conceivable that some of the Members of Congress actually didn't want U.S. forces inflicting casualties either? That by requiring congressional authorization they wanted to break our national habit of throwing bombs into volatile situations? That they simply believed the text of the Constitution requires authorization for any sustained foreign use of the weapons of war?

My confidence in the Administrations' reasoning isn't bolstered by reports that Obama got approval to defy the WPR by finessing the advice of his Office of Legal Counsel and the general counsel of the Department of Defense. The Bush Administration tended to keep shopping for pliant government lawyers until it got the answer it needed; it specialized in end runs around the careful regulations the executive branch follows to ensure it remains within the law.

It's certainly possible that, if Obama had sought authorization, the Republican majority in the House would have refused. But how grave was that danger? To the best of my knowledge, no Congress has ever refused to approve military force when formally asked to do so. It's one thing for Boehner to object behind closed doors, another thing for Republicans to vote publicly to keep Gadaffy in power.

And even if Obama did lose, that wouldn't be the end of the world for anyone. It would have sparked a bitter debate about the U.S. role in the world, to be sure. But the Constitution is designed to foster that kind of debate, not suppress it.

Obama promised to do better than Bush. Maybe he has. I wish I were persuaded.

 

Image Credit: Darrin Zammit Lupi / Reuters

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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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