U.S. flouts presidential war powers limit

May 29, 2011


— The U.S. intervention in Libya’s civil war, intervention that began with a surplus of confusion about capabilities and a shortage of candor about objectives, is now taking a toll on the rule of law. In a bipartisan cascade of hypocrisies, a liberal president, with the collaborative silence of most congressional conservatives, is traducing the War Powers Resolution.

Enacted in 1973 over President Nixon’s veto, the WPR may or may not be wise. It is, however, unquestionably a law, and Barack Obama certainly is violating it. It stipulates that a president must terminate military action 60 days after initiating it (or 90, if the president “certifies” in writing an “unavoidable military necessity” respecting the safety of U.S. forces), unless Congress approves it. Congress has been supine and silent about this war which began more than 70 days ago.

All presidents have resented the WPR but have taken care to act “consistent with” its 48-hour reporting requirement. So on March 21, two days after the administration took the nation to war in Libya, Obama notified Congress of this obvious fact, stressing that U.S. operations would be “limited in their nature, duration, and scope” in the service of a “limited and well-defined mission.” Months ago, before it metastasized into regime change, the “well-defined” mission was to protect civilians.

In his March 28 address to the nation, Obama said “the United States will play a supporting role.” But the WPR does not leave presidential war-making utterly unrestrained if it is a “supporting role.”

On April 1, a Justice Department memorandum devoted many words to refuting what no one is disputing, that presidents have the power to initiate military action without Congress’ permission. The WPR assumes this with its 48-hour and 60- and 90-day deadlines. The memorandum reaches the conclusion the president wants by arguing as follows: By allowing U.S. involvement in hostilities to continue for 60 or 90 days, Congress “signaled” that it considers congressional authorization “most critical” for “major, prolonged conflicts” such as Korea and Vietnam.

But Congress did not “signal” this. It stipulated deadlines.

After 60 days, on May 20, Obama wrote to congressional leaders noting that since April 4, U.S. “participation” has involved “non-kinetic support” (intelligence, logistics, refueling) — but also decidedly kinetic attacks on Libyan air defenses and other targets of “the NATO-led” forces. He said U.S. support is “crucial” but “we are no longer in the lead.”

This is meretricious. We are not conspicuously leading this war by committee, aka NATO, but NATO would not act without us, and absent U.S. assets, the Libyan campaign could not continue.

Sen. Richard Lugar — former chairman of and current ranking Republican on the Foreign Relations Committee — normally is as placid as an Indiana meadow, but in a tart May 23 letter to Obama, Lugar charged that Obama’s commitments to consult with Congress and act “consistent with” the WPR “have not been fulfilled.” Lugar said the administration recently “canceled without explanation” a committee briefing on Libya by the vice chairman of the Joint Chiefs of Staff, and declined the committee’s request that a Defense Department official testify at another hearing — where the one administration official who did appear, from the State Department, “declined to answer questions about our military operations in Libya on the ground that such questions would be more appropriately answered by the Defense Department.”

Stonewalling is, perhaps, prudent when policy is ludicrous. It is, however, intolerable in the third month of a war that Obama said would involve days, not weeks. And as Lugar said with notable understatement, U.S. operations “have assumed a different character than you suggested when you announced the decision to initiate them.” Obama has made a perfunctory request for congressional approval of this war, but clearly will proceed without it.

Liberals are situational ethicists regarding presidential war-making: Imagine their comportment if Obama’s predecessor — who got congressional authorization for his uses of force — had behaved as Obama is doing regarding Libya. Most conservatives, who preen about their commitment to keeping government on a short leash, seem anesthetized by the administration’s sophistries.

“No president,” says Sen. John McCain, “has ever recognized the constitutionality of the War Powers Act and neither do I. So I don’t feel bound by any deadline.” Oh? No law is actually a law if presidents and senators do not “recognize” it? Now, there is an interesting alternative to judicial review, and an indicator of how executive aggrandizement and legislative dereliction of duty degrade the rule of law.

George Will is a columnist for Washington Post Writers Group. His email address is georgewill@washpost.com


cato_the_elder 3 years, 11 months ago

The WPR is indeed a bad law, but many of the same ex-hippies who supported it back in the day are now in Congress and in the Obama administration, and are pretending that it doesn't exist. Hypocrisy, anyone?

jhawkinsf 3 years, 11 months ago

A particularly odd group to single out, ex-hippies. A group known to be anti-war, not in power at the time of it's passage, and even if they now have some political power, probably not enough to overturn an almost 40 year old policy that has become deeply entrenched in the mechanisms of government. Almost any other group might have been more apt, but given the now long history of the resolution, it seems at best to the the responsibility of every group at all levels.

jafs 3 years, 11 months ago

You will find, I predict, that cato often tends to blame odd groups of people for things, in my opinion.

cato_the_elder 3 years, 11 months ago

The hippies of the late '60s were indeed an odd group, jafs. Many of them still haven't grown out of it. A number of them are serving in the Obama administration as we speak.

cato_the_elder 3 years, 11 months ago

Jafs, how old are you? Are you an ex-hippie yourself? Or, if you're too young to have been one and have only read about them, are you not aware of the devastatingly negative impact the Hippie Movement had on American culture, mores, and families?

jafs 3 years, 11 months ago

I'm not interested in your bullying.

You have no right to know about my personal life.

And, the effect of the 60's on American culture is complex, not simple.

cato_the_elder 3 years, 11 months ago

I agree that it's complex. Amid all of its complexities, however, one thing is clear: Those times gave the hard-core American Left the one thing it had wanted for decades, namely to turn an entire generation of young people against their parents and against their country. The fact that they only partially succeeded does not diminish the harm that they did to America.

jhawkinsf 3 years, 11 months ago

Painting with an awfully wide brush, aren't we.

cato_the_elder 3 years, 11 months ago

Apparently you survived without frying your brain, as so many others did. Or did you?

jhawkinsf 3 years, 11 months ago

If you think disparaging others somehow makes your point, you're wrong.

cato_the_elder 3 years, 11 months ago

Jhawkinsf, perhaps you might benefit from re-reading my original post:

"The WPR is indeed a bad law, but many of the same ex-hippies who supported it back in the day are now in Congress and in the Obama administration, and are pretending that it doesn't exist. Hypocrisy, anyone?"

You bet my comment was disparaging. The rank hypocrisy of those who originally supported the WPR back in the day and have now turned a blind eye to what Obama and his cronies are doing is appalling. If you can't see that, then you're not running on all cylinders.

jhawkinsf 3 years, 11 months ago

Let's look at the resolution. Passed in 1973 by a Congress elected in 1972. That same year, Nixon won the presidential election. The hippies, were probably voting in their first election, as 18 year olds could not vote in 1968. Suggesting that first time voters could be responsible for the passage of this resolution, yet their least favorite candidate won the presidency makes no sense. First time voters typically have the least political clout and Nixon's re-election proves that point here. Since then, the resolution has become deeply entrenched in our political fabric. Presidents of both parties have used it to their advantage. But if you still disagree with my analysis, just list the 50% +1 members of congress that voted for this resolution who are or were also hippies.
And suggesting that someone may suffer from drug induced brain damage simply because they disagree with you is inappropriate. If you refrain from making that assumption, I'll assume you did not wreck a motorcycle leaving half your brain scattered along the highway. Deal?

jafs 3 years, 11 months ago

And without any sense of his bias, as usual.

cato_the_elder 3 years, 11 months ago

Again, jafs, a rather cryptic post.

Let me explain "bias" to you: I'm most definitely biased against placing my hand on a hot burner on a kitchen stove. It's called "common sense," with which liberal Democrats are seldom blessed.

jafs 3 years, 11 months ago

see jhf's post immediately above mine.

You reveal your own nature as a bully, without supporting any of your points, that's all.

cato_the_elder 3 years, 11 months ago

See my response to jhf's post immediately above yours.

Frankly, I had you tabbed as a person of sufficient intellect to appreciate the hypocrisy I was talking about. Perhaps I was wrong.

jafs 3 years, 11 months ago

If you are making the point that there is hypocrisy in politics, I take that as a given, and hardly worth mentioning.

If you are trying to say that all the hypocrisy in politics lies with "ex hippies in the Obama administration", then I think you're flat out wrong.

And, you clearly have some problem with hippies, or ex-hippies, that goes far beyond the WPR discussion.

As well as the unfortunate tendency to bully and demean those who may disagree with you.

cato_the_elder 3 years, 11 months ago

"If you are trying to say that all the hypocrisy in politics lies with "ex hippies in the Obama administration", then I think you're flat out wrong."

I never said that.

Regarding my distaste for what the Hippie Movement did to our culture, mores, and families, it's obvious that you're simply too young to understand it.

By the way, if that's "bullying," then you had better get out of the kitchen.

jafs 3 years, 11 months ago

You're a bully, plain and simple.

And, instead of offering facts which support your position, you just do the equivalent of yelling, and demean others.

You have no idea how old I am, and it's not any of your business.

And, I simply disagree with your biased conclusion that the 60's, and the hippie movement were only a negative influence on our country.

You really ought to consider removing the "log" from your eye, so as to see more clearly.

cato_the_elder 3 years, 11 months ago

Jafs, "bully" or not, I lived through what the hippies and their ilk did to this country. Their reprehensible political tactics gave "bullying" another meaning altogether, which you obviously can't comprehend. If you didn't live through it, you're more fortunate than you know.

jafs 3 years, 11 months ago

As a matter of fact, I did live through the 60's, so you're wrong about that as well.

It, and the hippies, was a mixed thing, as is most of human behavior, and certainly political movements.

"Reprehensive political tactics" have existed throughout time and human history, and certainly didn't start or end with the hippies.

Fascism is the political movement that arises from a romanticized nostalgia about the "good old days", and the desire to return to them.

Any reasonable attempt to look at the larger picture with some sort of objectivity would conclude that the effect on our culture was mixed, with both positive and negative attributes, some of which depend on your point of view.

For example, the husband whose wife leaves him to gain more freedom and self-determination undoubtedly sees that differently than the wife, or the children.

beatrice 3 years, 11 months ago

The problem with Will's argumet is that the Senate DID vote on actions against Libya earlier in the year: "The Senate passed Tuesday (March 1) a resolution calling for the resignation of Moammar Gaddafi as well as new steps against the Libyan leader, including the possible establishment of a no-fly zone over Libyan territory.

The resolution, sponsored by Sen. Robert Menendez (D-N.J.), was approved Tuesday night by unanimous voice vote. It calls on Gaddafi to 'desist from further violence, recognize the Libyan people's demand for democratic change, resign his position and permit a peaceful transition to democracy governed by respect for human and civil rights and the right of the people to choose their government in free and fair elections.'" http://voices.washingtonpost.com/2chambers/2011/03/senate_passes_libya_resolution.html

Did Will forget? I doubt it. The fact that he leaves this important note out of his article is an apparent attempt to falsify information by omission to support his anti-Obama point of view. That is just a shame.

jhawkinsf 3 years, 11 months ago

I don't want to pick on Obama, so let me say first that every president since FDR has engaged U.S. forces in conflicts where Congress has neglected to declare war. The War Powers Resolution was meant to deal with the ambiguity of situations where the president feels the need to send in forces but does not have the time to consult Congress. The question is, can Congress abdicate a responsibility that the Constitution specifically conveys upon it? I would think not, though I'm in no position to make such a determination. I would love to see the Supreme Court weigh in on this matter. And if anyone knows if that has been brought before the court, I'd love to read about it. But, Beatrice, as to your saying the Senate passed a resolution calling for Gaddafi to resign, I'm not sure what that means. Can President Obama commit U.S. forces based on a resolution that must be viewed as a non-binding resolution.

beatrice 3 years, 11 months ago

The language in the resolution voted on in the Senate "urges the United Nations Security Council to take such further action as may be necessary to protect civilians in Libya from attack, including the possible imposition of a no-fly zone over Libyan territory..."

While clearly it is not the same as voting on a declaration of war, the enforcement of a no-fly zone and the protection of civilians within Libya wasn't going to be handled with kind words and economic sanctions. Military action would be necessary, and this was clear when the Senate voted.

Personally, I would much rather both the House and Senate had voted on our full actions with NATO. I think not making this happen was a mistake by Obama. However, Will is acting as if Congress had never been given any notice of such matters, and that just isn't the case.

Why doesn't Will mention the vote in the Senate? That is my point.

Flap Doodle 3 years, 11 months ago

Calling for Qadaffie's resignation isn't quite the same as giving Libya a whole bunch of explody bomb presents.

beatrice 3 years, 11 months ago

No, that isn't was I meant to say at all.

jayhawklawrence 3 years, 11 months ago

George failed to mention that under a Bush administration we would be invading Iran about this time and ignoring Libya if we used the brain trust of Cheney and Rumsfeld to guide our actions.

Perhaps Obama has learned that it is important to stay busy and not settle into one issue. It is harder to hit a moving target. He has been to South America, Europe and now Joplin in a very short period of time, stopping long enough to deal with Libya and watch on camera as our elite team took out Bin Laden without the corrupt Pakistan government even knowing what we were doing.

I think he deserves a pat on the back for the last couple of weeks of hard work.

beatrice 3 years, 11 months ago

Got any proof on this line of Osama being dead for years? Can you support anything you write, ever? What exactly are you trying to contribute here?

Flap Doodle 3 years, 11 months ago

Dear Leader's doc had warned him to cut back on his alcohol consumption. Wonder how he felt about the European Pub Crawl that just wrapped up?

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