For all their education and practice in rhetorical skills, presidents sometimes have trouble with the simplest and most straightforward of words. Bill Clinton stumbled over the meaning of “is.” George W. Bush tortured the definition of “torture.” And now Barack Obama is telling Congress and the public that the United States is not engaged in “hostilities” in the Libyan civil war.
Like Clinton and Bush before him, Obama is playing word games with a purpose. In this case, Obama is avoiding the obligation under the War Powers Resolution to consult with and notify Congress before introducing U.S. forces into “hostilities” abroad and to withdraw those forces after 60 days unless Congress affirmatively authorizes the continued deployment.
No president has loved the War Powers Resolution, which Congress passed in 1973 after the Vietnam escalation horse was years out of the barn. Many of Obama’s supporters, however, expected him to be the antidote to eight years of presidential hubris under George W. Bush.
Now, Obama finds himself assailed for presidential presumption by partisan Republicans, disappointed leftist Democrats, middle-of-the-road political observers, and the editorial boards of, among others, the New York Times and Washington Post. Some House Republicans want to cut off funding for the U.S. role in the Libyan intervention. Meanwhile, an unlikely bloc of 10 House members led by Ohio’s leftist Democrat Dennis Kucinich and North Carolina’s conservative Republican Walter Jones filed a federal court suit seeking to declare the continued deployment in Libya unconstitutional under the War Powers Resolution.
The likelihood of definitive resolution of these issues is small. Federal courts have stayed out of war-powers issues during and ever since the Vietnam War. The funding cutoff is probably a dead letter in the Senate even if it is approved in the House. But Congress is equally unlikely to pass the bipartisan resolution sponsored by Democrat John Kerry and Republican John McCain in the Senate to approve the Libyan intervention. House Republicans are not apt to give Obama the benefit of congressional blessing for any of his foreign policies.
Apart from the politics, the law on the issue will also remain unsettled. Obama’s position, explained near the end of a 32-page memorandum submitted to Congress last week [June 15], is that the limited U.S. military operations in the Libya intervention are “distinct from the kind of ‘hostilities’ contemplated by the [War Powers] Resolution’s 60 day termination provision.”
U.S. forces are playing “a constrained and supporting role in a multinational coalition,” according to the memorandum jointly prepared by the State and Defense departments. The coalition’s mission, authorized and limited by a United Nations resolution, is solely to protect civilian populated areas from attacks and to enforce an arms embargo and no-fly zone.
“U.S. operations,” the memorandum continues, “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.”
It is easy to scoff at the assertion that U.S. drone strikes and support for NATO air strikes aimed at Libyan government sites and facilities do not constitute “hostilities.” It is easy as well to doubt the rosy out-of-harm’s-way scenario envisioned in the memorandum.
The legal reasoning is tenable, however, as a way to accommodate the rigidities of the War Powers Resolution with the diplomatic and military realities of wielding U.S. power in increasingly hard to define global crises. But Obama’s position was undermined by the disclosure – by the New York Times’s relentless presidential-power watchdog Charlie Savage – that the acting head of the Justice Department’s Office of Legal Counsel and the general counsel of the Defense Department both disagree.
Caroline Krass at Justice and Jeh Johnson at the Pentagon both reportedly advised that the U.S. military activities in Libya amount to “hostilities” and the War Powers Resolution applies. According to Savage’s story, Obama chose instead to follow contrary advice from White House counsel Robert Bauer and Harold Koh, the State Department’s legal adviser.
The puzzling aspect of the administration’s position is the long delay in its coming. The U.S.-NATO air campaign in Libya began on March 20. By the administration’s account, U.S. forces had shifted to a support role by April 7. Administration officials insisted the War Powers Resolution deadline was inapplicable, but failed to set out the reasoning until last week – nearly 90 days after the intervention began.
The State-Defense memorandum makes a good case for the Libyan intervention in policy terms. The critics on Capitol Hill have no comparable position paper to answer the question: what next? They seem simply to want to get the United States out of the affair, leaving the fate of the Libyan revolt to the Europeans or the rebels themselves.
The War Powers Resolution was an earnest attempt to make both president and Congress more accountable in issues of war and peace. As Robert Chesney, national security expert at the University of Texas Law School, wanly concludes, however, it has been less than a success. The president, he says in a commentary written for the Brookings Institution, takes policy seriously, but not law, while Congress takes law seriously, but not policy. Nothing in the current episode suggests the two political branches are likely to change their ways any time soon.