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Monday, May 23, 2011

Libya and War Powers

Last week, the president wrote congressional leaders about Libya. Though his letter did not directly mention the War Powers Act, it suggested that this law did not apply:

The initial phase of U.S. military involvement in Libya was conducted under the command of the United States Africa Command. By April 4, however, the United States had transferred responsibility for the military operations in Libya to the North Atlantic Treaty Organization (NATO) and the U.S. involvement has assumed a supporting role in the coalition's efforts. Since April 4, U.S. participation has consisted of: (1) non-kinetic support to the NATO-led operation, including intelligence, logistical support, and search and rescue assistance; (2) aircraft that have assisted in the suppression and destruction of air defenses in support of the no-fly zone; and (3) since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO-led coalition's efforts.

(Oddly, although the White House has posted many other letters to congressional leaders on its website (examples here, here, and here), this letter is not yet available there.)

The issue came up at Friday's White House press briefing with press secretary Jay Carney:

Q Libya, War Powers Act. Is there movement on that, from your perspective? Will there be consultation with Congress? I know we’re at a deadline on that.

MR. CARNEY: As you know, Mike, the President has been in consultation with Congress on Libya from the beginning. And the President’s actions have been and are consistent with the War Powers Resolution. We have said from the beginning that we would welcome an expression of support from Congress, in this case similar to the one that has been put forward -- bipartisan one put forward by Senators McCain and Kerry and others. And, again, we have consulted with Congress. We’ll continue to consult with Congress, and would welcome support.

Q Is there a feeling, though, that he needs to ask authorization for continued operation --

MR. CARNEY: I would just say that we have -- the President has acted in a way that's been consistent with the War Powers Resolution, and would welcome an expression of support by Congress.

In The Washington Post last week, Yale law professors Bruce Ackerman and Oona Hathaway strenuously disagreed with the president's position:
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.”

This is especially so when an active-duty American officer remains at the top of NATO’s chain of command. As supreme allied commander, Adm. James Stavridis “leads all NATO military operations.” While a Canadian air force general, Charles Bouchard, is in charge of the Libyan campaign, the buck doesn’t stop with him but with Stavridis, who also reports to the Pentagon as head of the U.S. European command. Even if American drones discontinue their operations before the deadline, an American admiral will still be in a position to call the shots.

This is no accident. NATO has been a key vehicle for American military interests since the 1950s. It would create a terrible precedent to pretend otherwise. Once Obama crosses the Rubicon, future presidents will simply cite Libya when they unilaterally commit America to far more ambitious NATO campaigns.

Make no mistake: Obama is breaking new ground, moving decisively beyond his predecessors. George W. Bush gained congressional approval for his wars in Afghanistan and Iraq. Bill Clinton acted unilaterally when he committed American forces to NATO’s bombing campaign in Kosovo, but he persuaded Congress to approve special funding for his initiative within 60 days. And the entire operation ended on its 78th day.

Most Democrats are holding fire. So are most Republicans, as David Paul Kuhn writes at RealClearPolitics:

GOP leaders are no more eager to take up this constitutional fight than the lawmakers of Obama's own political party. A supporting resolution means Republicans sign off on the war. Their silence allows them the liberty to criticize the president's actions, should the conflict come back to haunt him. Americans remain ambivalent about the use of U.S. forces in Libya.

Yet this is a time when conservative activists carry copies of the Constitution in their pockets. Tea party protesters invoke the revolutionary "don't tread on me" motto. House Speaker John Boehner, like so many GOP leaders, publicly expressed his reverence for the Constitution during the health care debate. Yet as another president usurps the legislative branch's most solemn of power -- to declare war -- Republican leaders are not crying, "Hell, no!"

Eric Cantor's office told The Hill last week that the House majority leader was more concerned with "the lack of a defined mission and purpose" than the president's authority under the act.

This is the same Cantor who, last year, wrote an article headlined "Restoring Madison's Vision." "Congress -- and each of its members -- must take seriously its responsibility to legislate only within the few and defined powers of the Constitution," Cantor wrote. "Madison argued that electoral accountability was one of the bulwarks against tyranny."

Here is James Madison, writing to Thomas Jefferson, in 1798: "The Constitution supposes, what the history of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.