[Expanded Answer to Question 6]
President Obama said in 2007 that in the absence of an “actual or imminent threat to the nation,” the president could not take our nation to war without authorization by Congress. But then he ordered the bombing of Libya so he could force Ghaddafi out of power without any authorization by Congress.
Two days after the beginning of bombing, President Obama formally informed Congress of his action. Several members of Congress, from both parties, were extremely critical. For instance, Senators Richard Lugar and Rand Paul argued that Obama’s actions were unconstitutional, noting he had encroached on legislators’ war powers. As Michigan Congressman Justin Amash said, “When there is no imminent threat to our country, he cannot launch strikes without authorization from the American people, through our elected representatives in Congress.”
The War Power Resolution, passed by Congress in 1973 and since amended, requires that if a president takes unilateral action, he must end military operations after 90 days if there is no congressional approval. There was no congressional approval of Obama’s military attacks against Libya, but Obama refused to follow the War Powers Resolution’s requirement to pull troops out after 90 days. Instead, he maintained, preposterously, that the bombing of Libya was not the sort of “hostilities” covered by the War Powers Resolution. Here’s what the New York Times had to say about Obama’s excuse for not following the 90-day limit:
Two days after the beginning of bombing, President Obama formally informed Congress of his action. Several members of Congress, from both parties, were extremely critical. For instance, Senators Richard Lugar and Rand Paul argued that Obama’s actions were unconstitutional, noting he had encroached on legislators’ war powers. As Michigan Congressman Justin Amash said, “When there is no imminent threat to our country, he cannot launch strikes without authorization from the American people, through our elected representatives in Congress.”
The War Power Resolution, passed by Congress in 1973 and since amended, requires that if a president takes unilateral action, he must end military operations after 90 days if there is no congressional approval. There was no congressional approval of Obama’s military attacks against Libya, but Obama refused to follow the War Powers Resolution’s requirement to pull troops out after 90 days. Instead, he maintained, preposterously, that the bombing of Libya was not the sort of “hostilities” covered by the War Powers Resolution. Here’s what the New York Times had to say about Obama’s excuse for not following the 90-day limit:
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Mr. Obama cannot evade his responsibility, under the War Powers Act, to seek Congressional approval to continue the operation.
The White House’s argument for not doing so borders on sophistry—that “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops,” and thus are not the sort of “hostilities” covered by the act. This country’s involvement in the air campaign is undeniably limited. Since the United States handed off command to the Europeans in early April, the Pentagon has provided refueling and surveillance for NATO planes, hit air defenses and sent in armed, remotely piloted drones. But the 1973 act does not apply solely to boots-on-the-ground, full-out shooting wars. It says that 60 or 90 days after notifying Congress of the introduction of armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated,” the president must receive Congressional authorization or terminate the mission. No word games can get him off the hook. |
Oona A. Hathaway, a professor at Yale Law School who served as a legal adviser to the Department of Defense during the Obama administration, has described the disingenuous excuse provided by President Obama for ordering the bombing of Libya without congressional authorization as follows:
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. . . I do think that the Libya operation was harmful to congressional war powers, because the President, in defending the operation, interpreted hostilities in the War Powers Resolution in a way that basically made it almost ineffectual. Saying the extensive bombing campaign in Libya wasn’t hostilities does really mean that it is very hard to imagine that the War Powers Resolution applies to anything other than a full D Day-type invasion. So it really restricts its effect, and I do think that was a big mistake on Obama’s part.
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Consistent with the growing trend since the Korean War of U.S. presidents unilaterally initiating war or ordering acts of war, President Obama’s clear violation of the War Power Clause and the War Powers Resolution by bombing Libya without authorization of Congress created a dangerous precedent. Some people used that precedent to justify President Trump’s unilateral decision to have Qassem Suleimani, the head of Iran’s Quds Force, killed.
Professor Hathaway described the dangerous slippery slope of eliminating the protections against presidents assuming dictatorial powers in initiating war and engaging in acts of war:
Professor Hathaway described the dangerous slippery slope of eliminating the protections against presidents assuming dictatorial powers in initiating war and engaging in acts of war:
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I think that each act of pushing the bounds makes it easier for someone that comes later to push the bounds further, and makes it seem less surprising and less norm-breaking and less outrageous. The less of a leap that’s required, the more there is a willingness to accept it. . . . I think it has made it easier for Republicans to accept that what the President [Trump] is doing [i.e., unilaterally ordering the killing of a high-ranking Iranian military figure] as not all that different, and it has given them some rhetorical fire, because they can say, “Look, President Obama went to war in Libya without congressional authorization. So, really, what is so different here?" And those arguments do have some effect. And so I think that Presidents before have made it easier for Trump to do what he is doing.
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The San Francisco Examiner (San Francisco, California),16 Jun. 2011, Thu, Page A17, Newspaper.com
