U.S. Presence in Libya Is Pushing the Legal Boundaries

Obama's speech on the Arab Spring arrives one day before the War Powers Resolution deadline

Tomorrow, May 20, marks the expiration date on President Obama's carte blanche in Libya. As the administration cited from the start, the War Powers Resolution of 1973 allows the president 60-days to conduct military operations without a declaration of war from Congress. Pundits say we shouldn't expect to hear much about a plan for America's withdrawal from Libya in the president's speech today, despite the impending deadline. Furthermore, since the House of Representatives is out of session this week, there's no way for Congress to grant an extension.

In an especially thorough column this morning, Glenn Greenwald presents a basic conclusion: "This war, without Congressional authorization, is illegal in every relevant sense: Constitutionally and statutorily." As Greenwald points out, the War Powers Resolution only applies in the case of "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." Further:

It was equally clear from the start that this Orwellian-named "kinetic humanitarian action" was, in fact, a "war" in every sense, including the Constitutional sense, but that's especially undeniable now.  While the President, in his after-the-fact speech justifying the war, pledged that "broadening our military mission to include regime change would be a mistake," it is now clear that is exactly what is happening.  "Regime change" quickly became the explicit goal. NATO has repeatedly sought to kill Gadaffi with bombs; one attack killed his youngest son and three grandchildren and almost killed his whole family including his wife, forcing them to flee to Tunisia.  If sending your armed forces and its AC-130s and drones to another country to attack that country's military and kill its leader isn't a "war," then nothing is.

Of course, definitions aside, Obama would need to approach Congress for approval next week in order legally to keep U.S. troops there. According to a New York Times report, the administration plans to consult Congress but is also scrambling for other solutions. Last week, James Steinberg, deputy secretary of state, testified before the Senate Foreign Relations Committee, where a small group of Republican senators continue to pressure the administration about the deadline. Steinberg told them, "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." One option mentioned includes pausing the mission momentarily before recommitting troops, a move that would effectively reset the 60-day clock on the War Powers Resolution.

Historically, the War Powers Resolution has been a thorn in presidents' sides, but Obama could break new ground in ignoring it. Until Clinton continued bombing Kosovo past the deadline--operations there ceased after 78 days--presidents followed the rules set out in the 1973 law. As Yale professors Bruce Ackerman and Oona Hathaway explain in a Washington Post op-ed today, Congress did approve Clinton's request for funds within the 60-days, letting him off the hook somewhat. President Bush also invoked the act in the days after September 11 but obtained congressional approval for the conflicts in both Afghanistan and Iraq. Obama, recall, campaigned on putting an end to "indiscriminate warmaking." So, how will Obama justify his actions? Ackerman and Hathaway argue:

Because it’s easier to paper over the problem with new legal fictions pretending that the time limit doesn’t apply to this instance. By Friday, the administration’s legal team is likely to announce that the clock stopped ticking on April 1 — the date when NATO “took the lead” in the bombing campaign. Since NATO is running the show, the argument will go, the War Powers Act no longer applies, and the president doesn’t have to go back to Congress after all.

But American planes and drones continued their bombing long after the April turnover — and the drones are still flying over Libya. Since the cost of the mission is at three-quarters of a billion dollars and climbing, it is sheer fiction to suggest that we are no longer a vital player in NATO’s “Operation Unified Protector.”

On behalf of Congress, John Kerry has been "talking with the administration" this week about the impending deadline. As other prominent senators like John McCain continue deny the constitutionality of the War Powers Resolution--that line of thinking has been contentious since Nixon vetoed the bill--Kerry sounds less than assertive about challenging the president. He reported to fellow senators at a weekly policy lunch, "We want to make sure we're not stretching anything inappropriate. So we're looking at some language. We're really looking at it very seriously to keep everyone on the same page."