“Since the United States handed control of the air war in Libya to NATO in early April, American warplanes have struck at Libyan air defenses about 60 times, and remotely operated drones have fired missiles at Libyan forces about 30 times, according to military officials…
“The disclosure of such details could add texture to an unfolding debate about the merits of the Obama administration’s legal argument that it does not need Congressional authorization to continue the mission because United States forces are not engaged in ‘hostilities’ within the meaning of the War Powers Resolution.”
“Last Sunday was the 90th day of bombing in Libya, but Mr. Obama — armed with dubious legal opinions — is refusing to stop America’s military engagement there. His White House counsel, Robert F. Bauer, has declared that, despite the War Powers Act, the president can continue the Libya campaign indefinitely without legislative support. This conclusion lacks a solid legal foundation. And by adopting it, the White House has shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years…
“If the precedent Mr. Obama has created is allowed to stand, future presidents who do not like what the Justice Department is telling them could simply cite the example of Mr. Obama’s war in Libya and instruct the White House counsel to organize a supportive ‘coalition of the willing’ made up of the administration’s top lawyers. Even if just one or two agreed, this would be enough to push ahead and claim that the law was on the president’s side.
“Allowing the trivialization of the War Powers Act to stand will open the way for even more blatant acts of presidential war-making in the decades ahead. Congress must confront the increasingly politicized methods White House lawyers are using to circumvent established law and stop them from transforming it into an infinitely malleable instrument of presidential power.”
“One top former legal adviser to Obama, Dawn Johnsen, called the accounts of the White House’s handling of the matter ‘disturbing.’
“‘There may be a precedent for this, but I can’t think of one,’ said Robert Chesney, a University of Texas law professor who specializes in national security law. ‘This is not the way the process is supposed to work.’
“For decades, Chesney and other legal scholars said, legal and constitutional questions within the government have been resolved by the Justice Department’s Office of Legal Counsel (OLC). Just last year, a six-page Justice Department memo described OLC’s mission as providing ‘controlling advice’ to executive branch officials on questions of law.”
“If George W. Bush had ignored the views of his Justice Department’s Office of Legal Counsel to avoid complying with the War Powers Resolution, Democrats would be going berserk. Barack Obama, I suspect, would be going berserk.”
“On its own terms, the president’s statement is a constitutional joke. At no time does it give any account of what the critical term ‘hostilities’ means, except to say that whatever its meaning, it constitutes a high threshold that is not met in Libya. The trusty thesaurus offers the word ‘fighting’ as a synonym for ‘hostilities,’ which is just what we are doing in Libya today. There is no evidence in the WPR text that the term ‘hostilities’ does not have its ordinary English meaning. The term is first used in connection with the statement that the WPR ‘will apply to the introduction of the United States Armed Forces into hostilities.’ The word ‘introduction’ suggests that the WPR kicks in when hostilities begin such that Congress preserves its power to have a say before these hostilities escalate into something bigger. The particular context reinforces the ordinary meaning and thus undercuts the president’s claim that small hostilities—which these aren’t—fly below the radar. The president’s statement gets everything exactly backwards…
“[T]he president offers not a shred of evidence to support his twisted constitutional logic. Hats off to those in his administration—Eric Holder, Caroline Krass, and Jeh Johnson—who stood up to the president. And shame on those, like Harold Koh, who should know better.”
“91 days after President Barack Obama notified Congress he was using U.S. military force ito attack Libya, Sens. John Kerry (D-MA), John McCain (R-AZ), and Carl Levin (D-MI) introduced a resolution authorizing the intervention. But don’t expect the Senate to pass it any time soon.
“In interviews with over a dozen senators Tuesday, The Cable discovered that it will take weeks, not days, for the resolution to come up for a vote. The resolution’s language is only the starting point for a Senate debate that will feature resolutions and amendments from multiple senators, each of whom has their own ideas of how to express the Senate’s position on the Libya war…
“The administration argues that it has consulted Congress several times, but many senators are unhappy with the quality of the information. Sen. Jeff Sessions (R-AL) told The Cable Tuesday that he was finally given a briefing June 10 by Undersecretary of Defense for Policy Michele Flournoy and others but that it did not pass muster.
“‘It was one of the weakest briefings I’ve ever had. I thought it was very, very weak,’ Sessions said.”
“House Speaker John Boehner (R-Ohio) said on Tuesday evening that House Republicans would meet on Wednesday to discuss two Libya resolutions — one that would authorize the use of force in Libya, and another that would require the U.S. to withdraw military forces…
“‘It is clear that the Obama administration’s claim that targeted bombings, missile strikes, and other military actions in Libya do not constitute ‘hostilities’ under the War Powers Resolution is not credible,’ Boehner said. ‘As we have learned in the past week, even his administration’s attorneys from the Office of Legal Counsel and the Department of Defense recognize that.’
“Boehner said the U.S. has no desire to damage the NATO alliance, but said the White House ‘must not ignore its obligations to the American people and the laws of this country.'”