NYT: White House searching for “plausible theory” by which Libya war won’t soon be illegal

posted at 5:30 pm on May 13, 2011 by Allahpundit

In an alternate reality where anyone still cares about Libya or the War Powers Act, this article is the biggest story in America today. As it is, the president concocts a half-assed legal dodge to avoid even minimal accountability in matters of war and somehow it’s not even on the board at Memeorandum.

Luckily, Congress doesn’t care either or else we might have had quite a tiff on our hands here.

The administration apparently has no intention of pulling out of the Libya campaign, and Mr. Steinberg said that Mr. Obama was committed “to act consistently with the War Powers Resolution.” So the Obama legal team is now trying to come up with a plausible theory for why continued participation by the United States does not violate the law.

A variety of Pentagon and military officials said the issue was in the hands of lawyers, not commanders. Several officials described a few of the ideas under consideration…

By ending all [drone] strike missions for American forces, the argument then could be made that the United States was no longer directly engaged in hostilities in Libya, but only providing support to NATO allies.

Another idea is for the United States to order a complete — but temporary — halt to all of its efforts in the Libya mission. Some lawyers make the case that, after a complete pause, the United States could rejoin the mission with a new 60-day clock.

I like the phrasing about how they’re trying to “come up” with a legal theory to justify a war a few days before the 60-day grace period ends, as if they’re some sort of high school study group brainstorming over pizza the night before a big class presentation is due. And the presentation doesn’t even have to be good — merely “plausible,” sort of in the C-/D+ range. Congress is famously an easy grader.

Hopefully the White House will have some fun with it, just to see how much crap Senate eminences like Kerry — who now admits the war is a stalemate — and McCain are willing to eat. The boldfaced logic in the blockquote is wonderfully surreal, for instance: If you take it seriously, that the president can wage war indefinitely without congressional authorization merely by declaring a formal halt and then a formal re-start to operations every 60 days, then the War Powers Act is a colossal joke. You wouldn’t have to go to court to try to nullify it on separation-of-powers grounds; it’d be effectively defunct, killed by its own weakness as Congress refused to support it. First the economy, then Bin Laden, now the WPA: Say what you will about The One, but when he wants something dead, he knows how to get the job done.

As for how long the mission will go on, apparently that’s entirely up to Qaddafi. He issued a statement today claiming that NATO bombs will never find him, but rumors are swirling that that’s not true.


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Two words: EXECUTIVE ORDER!

PappyD61 on May 13, 2011 at 5:32 PM

Faceplant Time

Oil Can on May 13, 2011 at 5:32 PM

Four more wars! Four more wars!

tetriskid on May 13, 2011 at 5:33 PM

after a complete pause, the United States could rejoin the mission with a new 60-day clock.

So you wouldn’t keep guys in the fight at all? No food for them? No power? I’m pretty sure “Just stop actively fighting for a few years” doesn’t suffice.

My understanding is that they can only remain for 60 days, then another 30 for withdrawal. What’s the work around for that?

I’m sure one of our resident lefty legal scholars will enlighten us. Then we can all laugh at how they’d be screeching if Bush had done the same thing.

amerpundit on May 13, 2011 at 5:34 PM

Easy, the 1973 War Powers Act the Dems passed was and is UN-Constitutional and the Executive has the power Constitutionally inherent within Article II

See Robert Turner for example for scholarship on the subject at the Federalist Society:

http://www.fed-soc.org/publications/detail/the-war-powers-resolution-an-unnecessary-unconstitutional-source-of-friendly-fire-in-the-war-against-international-terrorism

jp on May 13, 2011 at 5:34 PM

IF, they wanted to not agree with Constitutional Originalist about the War Powers Act being Unconstitutional, they could simply cite the 2001 AUMF and claim Lybia falls under its umbrella, related to Terrorism, Qaddafi being a State Sponsor and all.

jp on May 13, 2011 at 5:36 PM

Easy, the 1973 War Powers Act the Dems passed was and is UN-Constitutional and the Executive has the power Constitutionally inherent within Article II

That’s great. Why not litigate it, then, and get a ruling on it rather than jerk around with “plausible theories”?

Allahpundit on May 13, 2011 at 5:36 PM

That’s great. Why not litigate it, then, and get a ruling on it rather than jerk around with “plausible theories”?

Allahpundit on May 13, 2011 at 5:36 PM

with any luck thats what will happen, and the 1973 War Powers Act will be declared Unconstitutional like Constitutional scholars have been arguing for since the Dems passed it overriding Nixon’s veto.

jp on May 13, 2011 at 5:40 PM

Easy, the 1973 War Powers Act the Dems passed was and is UN-Constitutional and the Executive has the power Constitutionally inherent within Article II

See Robert Turner for example for scholarship on the subject at the Federalist Society:

http://www.fed-soc.org/publications/detail/the-war-powers-resolution-an-unnecessary-unconstitutional-source-of-friendly-fire-in-the-war-against-international-terrorism

jp on May 13, 2011 at 5:34 PM

But the president can’t just ignore the law because he thinks it’s unconstitutional. It can be invalidated but until then it’s the law, no?

amerpundit on May 13, 2011 at 5:40 PM

Could we just have SOME GOP stand up and start screaming about this ?? PLEEEEEEEEZE ??
Too much to ask ???
Does it always have to be Palin to call these shots ??
Sheesh… There are days… Arrrgh.

pambi on May 13, 2011 at 5:42 PM

So what happens to the R2P doctrine, after 60 days the protection racket folds!

fourdeucer on May 13, 2011 at 5:44 PM

An illegal war has got to be a high crime…

If that is not a high crime what would be?

The power of the executive has got to be checked by Congress!

What are we even trying to do in Lybia any way?! Does anyone know?

If he were a Republican he would be impeached.

petunia on May 13, 2011 at 5:45 PM

But the president can’t just ignore the law because he thinks it’s unconstitutional. It can be invalidated but until then it’s the law, no?

amerpundit on May 13, 2011 at 5:40 PM

yep, if Obama doesn’t follow the WPA either the Congress and ACLU lets it go or they take it to court. In which case Obama will find himself hoping for a 5-4 decision….with Scalia, Alito, Roberts and Thomas on his side ironically.

jp on May 13, 2011 at 5:45 PM

Good excuse to say we need to raise the debt limit.

darwin on May 13, 2011 at 5:48 PM

IF, they wanted to not agree with Constitutional Originalist about the War Powers Act being Unconstitutional, they could simply cite the 2001 AUMF and claim Lybia falls under its umbrella, related to Terrorism, Qaddafi being a State Sponsor and all.

jp on May 13, 2011 at 5:36 PM

Yeah that would work. If we hadn’t already reestablished Diplomatic relations and specifically took Libya off the list of States sponsoring terrorism when Daffy coughed up his WMDs after we went into Iraq.

Rocks on May 13, 2011 at 5:48 PM

War Monger in Waiting…

RalphyBoy on May 13, 2011 at 5:50 PM

I had no idea democrats loved war so much. I mean they only got us into WWI, WWII, Korea, Vietnam and Bosnia.

darwin on May 13, 2011 at 5:50 PM

First the economy, then Bin Laden, now the WPA: Say what you will about The One, but when he wants something dead, he knows how to get the job done.

Killing the economy tanked his polls, killing terrorists gave him a bounce. Wonder what he’s focusing on more in his bid for reelection.

scalleywag on May 13, 2011 at 5:51 PM

Can’t wait for the ‘legal reasoning’ of this particular group of idiots in the White House. Do they actually think the public will believe anything they might come up with?

GarandFan on May 13, 2011 at 5:51 PM

“Hey, lets drop the “A” in Libya and replace it with an “O” to make it LIBYO. Changing the name of stuff always works.”

- ObamaCons.

portlandon on May 13, 2011 at 5:55 PM

Can’t wait for the ‘legal reasoning’ of this particular group of idiots in the White House. Do they actually think the public will believe anything they might come up with?

GarandFan on May 13, 2011 at 5:51 PM

The public will fall for it when the press tells them it’s ok and “legal”

clnurnberg on May 13, 2011 at 5:55 PM

Can’t wait for the ‘legal reasoning’ of this particular group of idiots in the White House. Do they actually think the public will believe anything they might come up with?

GarandFan on May 13, 2011 at 5:51 PM

Worked so far.

the_nile on May 13, 2011 at 5:57 PM

We can claim our only war aim is to capture and arrest Qaddaffi in connection with the Lockerbie bombing, as well as other terrorist acts we know beyond reasonable doubt he is responsible. And there is precedent: we did, after all, capture and arrest Manuel Noriega for using Panama as a logistical base for the drug cartels.

Or we could just keep bombing Libya until we kill him. Either way works for me. For that matter, I have no problem advocating putting boots on the ground. The Libyan army only has experience in oppressing poorly or unarmed civilians. I very much doubt they would last more than a week going against battle-seasoned Americans. If you’re in (and we evidently are), then go all in and win.

troyriser_gopftw on May 13, 2011 at 5:59 PM

First the economy, then Bin Laden, now the WPA: Say what you will about The One, but when he wants something dead, he knows how to get the job done.

Seriously, AP writes some great posts but this is really powerful.

msmveritas on May 13, 2011 at 6:00 PM

Nevermind all this Libya crap. Memorandum has the real breaking story:

George W. Bush Eating Souffle When Obama Called About Osama bin Laden — ABC News’ Devin Dwyer Reports: Former president George W. Bush said he was eating souffle at a restaurant with his wife and friends when President Obama called with the Osama bin Laden news.
+Discussion: Firedoglake, Salon, The Politico, CNN and Booman Tribune

mizflame98 on May 13, 2011 at 6:03 PM

Can’t the House just deny the funds for any Libyan operations?

darwin on May 13, 2011 at 6:04 PM

petunia on May 13, 2011 at 5:45 PM
Add that he’s STILL in contempt of court over the Gulf, what WILL it take ??
Sooooooooo discouraged, here, I can hardly speak/type.
ARRRGGGHHH.

pambi on May 13, 2011 at 6:08 PM

There’s a simple solution: Obama goes to Congress and gets an AUMF. That’s what the War Powers act says he’s supposed to do.

We can play the “What if it had been Bush who did this” game here, too. With all the baloney about Iraq being an “undeclared war” and a “war of choice”, the Libya operation is genuinely unauthorized by Congress, and certainly was not forced on us. Yet the usual suspects are strangely silent.

Steven Den Beste on May 13, 2011 at 6:09 PM

troyriser_gopftw on May 13, 2011 at 5:59 PM

Yes but there’s one big problem with this whole clusterfark. We had good diplomatic relations with Libya. The rebels were violent from day 1. There were never any protests. Daffy had every justification for responding violently.

If we wanted Daffy held to justice then we shouldn’t have accepted his payoff for the bombings, or taken Libya off the list of state sponsored terrorists or restored diplomatic relations. Daffy was in total compliance with our demands over WMDs.

Compare that to Syria. Why aren’t we doing crap about Syria? Because we know Hamas and Hezbollah would back them up along with Iran.

The only message that is going to come out of Arab Spring is that if you want to survive as a dictator then get yourself some nuclear weapons or ally yourself with someone who does.

Don’t bother making deals with the US as we aren’t going to honor it the minute it looks like we can get some mileage out of you.

We are at war with Libya because it was supposed to be easy. Well, war ain’t easy.

Rocks on May 13, 2011 at 6:13 PM

Rocks on May 13, 2011 at 6:13 PM

Seconded. I wonder when the rest of America is going to wake to these facts. This may very well be an illegal war.

Fortunata on May 13, 2011 at 6:22 PM

Someone please explain to me one more time why Barack Hussein Obama was awarded a Nobel Peace Prize.

FlatFoot on May 13, 2011 at 6:22 PM

AP, my wife(con lawyer) asked the exact same question. If POTUS goes to congress, get an AUMF, he could send a MEU in country within hours. By the end of month the “war” is over, NATO “wins”. So, what is stopping him. (No, I am NOT saying go,go. We have more than enough to chew on.)

flackcatcher on May 13, 2011 at 6:38 PM

Could we just have SOME GOP stand up and start screaming about this ?? PLEEEEEEEEZE ??
Too much to ask ???
Does it always have to be Palin to call these shots ??
Sheesh… There are days… Arrrgh.

pambi on May 13, 2011 at 5:42 PM

Because she’s st00pid, unelectable and her voice is irritating. Or something like that anyways. They told me so on TV.

/ <—- for the terminally clueless

kim roy on May 13, 2011 at 6:38 PM

A distraction? Keep the troops busy in 4 nations, while his personal civilian army takes care of peop…err things at home?

capejasmine on May 13, 2011 at 6:46 PM

Keewwl…!

… Now we can throw blood at Hillary Clinton!

Seven Percent Solution on May 13, 2011 at 6:46 PM

So the Obama legal team is now trying to come up with a plausible theory for why continued participation by the United States does not violate the law.

Yeah, knowingly breaking THAT law HAS to be a High crime and a FELONY.

Impeach Failbama NOW!

dogsoldier on May 13, 2011 at 7:22 PM

What I don’t understand is the political stupidity of this move.

Why not get a Congressional resolution in favor of force?

On I know there are a large number that wouldn’t vote for it, but truthfully would it have been that hard? It’s not like Gadaffi is popular with Congress.

Now it might be impossible, but if Obama had jammed it through earlier before it started I could see a lot of votes for it.

Sackett on May 13, 2011 at 7:59 PM

he’s got mccain’s vote

cmsinaz on May 13, 2011 at 8:10 PM

White House searching for “plausible theory” by which Libya war won’t soon be illegal

“I won.”

petefrt on May 13, 2011 at 8:53 PM

Sackett, the reason Obama doesn’t go to Congress for an Authorization for the Use of Military Force (AUMF) under the War Powers Act is because he’d have to offer a legitimate reason why we should be involved — and he can’t.

Steven Den Beste on May 13, 2011 at 11:31 PM

Rocks wrote, “We are at war with Libya because it was supposed to be easy. Well, war ain’t easy.”

I know a little bit about war, thanks, and I never said it would be easy. I said it would be quick if we committed, if we went all in rather than in accordance with the hesitant half-measures and chronic indecisiveness that are seemingly branded into the foreign policy DNA of this particular president.

Oh, and yeah, since when did paying off the families of the Lockerbie murder victims–or any murder victims–absolve a killer of his crimes? Qaddafi has American blood on his hands. He needs to pay in kind.

troyriser_gopftw on May 14, 2011 at 4:25 AM