President Obama, we did not vote for this unitary executive philosophy. In fact, we voted against it, remember?
Go to Congress and get the proper authorizations and respect the rule of law.
The legal process used to justify the president not needing to go to Congress for authorization is worrisome, in fact dangerous and their resulting claims that he is not required to abide by the War Powers Act in the case of the Libyan war could make it easier for future presidents to circumvent the law and take us to war unilaterally.
Bruce Ackerman:
The legal machinations Mr. Obama has used to justify war without Congressional consent set a troubling precedent that could allow future administrations to wage war at their convenience — free of legislative checks and balances.
David Dayen:
Whether or not you agree with the Libyan mission, the point is to prevent the next President from aggrandizing executive warmaking power through subverting the Constitution. If any mission where American lives aren’t threatened doesn’t count as “hostilities,” it brings us into an era of unaccountable drone wars. This is a terrible outcome with dangerous consequences, and should be stopped.
The White House Office of Legal Counsel
This is really important. I did not fully understand the importance of the way that the Office of Legal Counsel (OLC) has worked for the past 70+ years and how Bush circumvented it and how Obama is circumventing it in an even worse way.
Bruce Ackerman has been speaking out strongly about the illegality of our involvement in the Libyan war for months now, but yesterday he really laid out what happened during these last few weeks with Obama's "legal acrobatics" and the OLC.
Ackerman is no slouch:
Bruce Arnold Ackerman (born August 19, 1943) is an American constitutional law scholar. He is a Sterling Professor at Yale Law School and one of the most frequently cited legal academics in the United States.
http://en.wikipedia.org/...
I can't imagine how Ackerman could have used stronger words to describe what Obama has done in his scathing Op-Ed in the New York Times titled: "Legal Acrobatics, Illegal War" where he claims that Obama has
shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years.
What happened?
Since the 1930s, it has been the job of an elite office in the Justice Department — the Office of Legal Counsel — to serve as the authoritative voice on matters of legal interpretation. The approximately 25 lawyers in this office write legal opinions after hearing arguments from the White House as well as other executive branch departments.
But not this time. After Caroline D. Krass, acting head of the Office of Legal Counsel, told the president that he had to abide by the act’s requirements, the White House counsel decided to pre-empt the Justice Department’s traditional role. As the war powers deadline approached, Mr. Bauer held a series of White House meetings at which he contested the Office of Legal Counsel’s interpretation and invited leading lawyers from the State Department and the Pentagon to join him in preparing competing legal opinions for the president.
By going around the OLC, Ackerman says that Obama undermined "key legal check on arbitrary presidential power." Any president can appoint a White House Counsel who they know will always help them do things they want to do. Bush did this with Gonzales and it looks like Bauer did the same thing for Obama. It is not so easy to get the OLC, and all of the lawyers and agencies they consult with, to do what the president wants them to do. And this is by design, obviously.
bmaz, over at Emptywheel's blog
Let’s be crystal clear as to what happened here: The Attorney General, Head of the Office of Legal Counsel and the General Counsel for the Pentagon/DOD all listened to Obama’s plan to flat out ignore the War Powers Resolution (50 U.S.C. 1541-1548), and the Article I power it represents, and they unanimously said it was untenable and illegal in the face of the War Powers Resolution.
bmaz goes on to say that it is a "usurpation of power" that the Founders were trying to avoid.
What (Typically Friendly) People Are Saying
Look at what people are saying:
Even Juan Cole, who was a cheerleader for our entry into the Libyan War, believes that it is problematic from a constitutional standpoint:
President Barack Obama should have gone to Congress for authorization to stay in the Libya war. Not doing so weakened the legitimacy of the war in the US public, and involved his setting aside the legal advice he received from government lawyers. He could have set a precedent for the return to constitutional rule in the US, but tragically declined to take up that opportunity.
James Fallows at The Atlantic:
Obama Is Wrong About Congress and Libya
I am not a Constitutional law expert. But I've lived through enough cycles of America entering, waging, and recovering from wars to be absolutely sure in saying: the Obama Administration is making a big mistake in so stubbornly refusing to involve Congress in the commitment to war in Libya.
[ ... ]
But after three months of combat, and after several decades of drift toward unilateral Executive Branch action on matters of war and peace, Obama is doing a disservice to the nation, history, and himself by insisting that the decision should be left strictly to him. If the Libyan campaign ultimately "goes well," he will not in any way lessen his own political and historic credit by having involved the Congress. If it goes poorly, he will be politically safer if this is not just his own judgment-call war. More important, in either case he will have helped the country if his conduct restores rather than further weakens the concept that a multi-branch Constitutional republic must share the responsibility to commit force. We can only imagine the eloquence with which a Candidate Obama would be making this exact case were he not in the White House now.
[ ... ]
Obama and his lawyers can persist with their sophistic conceit that they don't "need" to involve the Congress. That may be smart, but it is not wise.
Not Hostilities? It's Embarrassing
Eugene Robinson at the Washington Post
Obama’s novel definition of ‘hostilities’
Let’s be honest: President Obama’s claim that U.S. military action in Libya doesn’t constitute “hostilities” is nonsense, and Congress is right to call him on it.
[ ... ]
Yet Obama, with uncommon disregard for both language and logic, takes the position that what we are doing in Libya does not reach the “hostilities” threshold for triggering the War Powers Act, under which presidents must seek congressional approval for any military campaign lasting more than 90 days. House Speaker John Boehner said Obama’s claim doesn’t meet the “straight-face test,” and he’s right.
Abu Muqawama (pro Afghanistan war)
It's War!
I'm no lawyer, I'll admit, but I do know thing or two about shooting wars, having been in a few and having studied others, and the conflict in which we have intervened in Libya is most certainly a war. The reason why the Obama Administration's legalistic determination that it is not a war is ridiculous is not because we've gotten to the point where we care most about which lawyers were smarter than other lawyers but because it does not pass the "common sense test" or "laugh test" of most Americans.
Amy Davidson at the New Yorker
War and Power, in Libya and Congress
Is the point that, while we are bombing Libya, we are doing it from a distance, out of Qaddafi’s forces’ range, so there aren’t “exchanges” of fire, just one-way barrages—hostility, rather than hostilities? Is the point that, while we are bombing Libya, we are doing it from a distance, out of Qaddafi’s forces’ range, so there aren’t “exchanges” of fire, just one-way barrages—hostility, rather than hostilities? By the same reasoning, it wouldn’t count as war if any overwhelming force attacked anyone who couldn’t effectively hit back; that exemption could apply not only to cruise missiles and drones but to a column of tanks rolling into a village. Is the only concern of the War Powers Act—is our only concern about war—whether our own soldiers can be shot? Aren’t we also interested in making sure there is some accountability when our government decides to shoot? (Would, someday, Congress have a say when it came to human troops, but not robot soldiers?) A war is not simply a short-term public-health issue; it can inveigle our country diplomatically, financially, and morally for decades.
It's Getting Even More Embarrassing
The Pentagon approved extra pay for our troops involved in the Libyan war because they are in "imminent danger".
Obama’s negation of ‘hostilities’ in Libya draws criticism
But at the Pentagon, officials have decided it’s unsafe enough there to give troops extra pay for serving in “imminent danger.”
The Defense Department decided in April to pay an extra $225 a month in “imminent danger pay” to service members who fly planes over Libya or serve on ships within 110 nautical miles of its shores.
That means the Pentagon has decided that troops in those places are “subject to the threat of physical harm or imminent danger because of civil insurrection, civil war, terrorism or wartime conditions.” There are no U.S. ground troops in Libya.
Will Obama's "Legal Acrobatics" Lead to Calls for Impeachment?
Obama is opening himself up to impeachment. Boehner and the Republicans are certainly playing politics with this. Their sudden doveness fools no one. But there is a Republican primary going on an a presidential election coming up. Does anyone doubt that they would take advanatage of this situation? Look, even the friendliest of lawyers and journalists are fuming about this and publicly siding against the president.
Remember when Kucinich brought articles of impeachement to the House floor? Do you think that an ambitious Republican would not do the same thing?
And if they did, it would require pretzel logic to defend against it.
bmaz over at Emptywheel's blog again:
Obama War Powers Treachery and The Founders’ Remedies
If our society and political discourse cannot seriously discuss impeachment for the type of executive perfidy demonstrated by Barack Obama in relation to Libya and the War Powers Resolution, and could not discuss it during the Bush/Cheney crimes, then the impeachment provision of the Constitution has no meaning and should be stricken.
Seriously, those are the stakes. A discussion, even an investigation, does not mean there has to be an impeachment conviction, or even that articles of impeachment should even be filed. But the discussion must be had if there is to continue to be integrity to the most fundamental terms and conditions of the United States Constitution.
Goldsmith Offers a Suggestion
A Way Out of the Libya Conundrum: The Lebanon and Somalia Analogies
The silver bullet to make these problems go away is a congressional authorization for the Libya operation. Getting Congress on board – which the White House should have done in the first place, out of political prudence if not legal compulsion – would eliminate the political bickering and would patch over the legal problems, rendering them practically insignificant. It seems like most members of Congress support the Libya intervention in theory. The problem is that the Congress as a whole feels dissed, many Republicans see a political opportunity, and blessing the President’s unilateral war-making long after the fact might be viewed as a precedent that effectively gives away some of Congress’s constitutional war powers.
Why? Why Doesn't He Just Go to Congress Already?
Everyone knows that Obama can get authorization for the Libya intervention from Congress if he tries. We certainly know he could have gotten it at the beginning of all of this when Speaker Boehner made strong statements of support. And even though many in Congress are now pissed off, they still won't stop him, but may require a bit of humility, okay maybe grovelling. But as time goes on, it is not going to get any easier to get authorization and money, especially as the austerity measures are debated in these coming weeks. In less than six weeks, the August recess will be upon us and then Congress won't even be around to pass any measures relating to the wars.
Goldsmith thinks it might be a matter of wanting to avoid any time limits imposed.
A time limit on the Libya intervention, by contrast, might be harder for the President swallow, since Libya involves offensive uses of force and a time limit would incentivize Gaddafi to hold out. The President might face a de facto time limit in any event if his appropriation authority runs out this Fall [ ... ] Perhaps he can negotiate for a time limit with a waiver provision if certain congressionally mandated conditions are satisfied. Or perhaps Congress will be satisfied with a WPR concession alone without a termination provision, or President Obama can make concessions to Congress along other dimensions. Even such broader concessions should enable the President to continue in Libya without further problems at home, and the Reagan and Clinton precedents provide him with necessary cover to back down from his unilateral assertions of presidential power.
Greenwald is a bit baffled by this, stating that he could easily have gotten authorization from Congress before entering into the war, but concludes that it is hubris and basically a power grab:
Other than the same hubris -- and a desire to establish his power to act without constraints -- it's very hard to see what motivated this behavior. Whatever the motives are, it's clear that he's waging an illegal war, as his own Attorney General, OLC Chief and DoD General Counsel have told him.
So if it is about the power grab and the advancement of the unitary executive theory, then please tell me, who is this guy in the White House again? Is he the one who made the "rule of law" central to his campaign and the one who stood against the unitary executive premise?
And if it is about worrying that Congress will place time limits on the Libyan war, well go and make the best deal that you can with Congress and if you run out of time, the fact of the matter is that you have to go back to Congress for more time and more money. That's just the way it is. The decision of whether to wage war and how much blood and treasure to spend on it is a decision made by the people, not by one man.