Overruling two of his senior legal advisers — the Pentagon’s general counsel and the acting head of the Justice Department’s Office of Legal Counsel — President Obama has decided that the U.S. is not engaged in “hostilities” in Libya. Obama has effectively nullified the War Powers Resolution (WPR), which requires the president to end hostilities within 60 days (with another 30 days to withdraw troops) unless he has received Congress’s authorization. In the Libyan war, the deadline for receiving Congressional approval or standing down passed on Friday. President Obama has done nothing to win Congress’s approval.
Obama taught constitutional law at the University of Chicago and campaigned for office on the claim that the Bush administration had ignored the rule of law. Nevertheless, his administration’s flouting of the WPR displays Obama’s fundamental hostility to the regular workings of the political process established by the Constitution and the traditions of American government. Just as the administration brushed aside the Constitution’s limits on the federal government’s powers over the domestic economy, so too it is ignoring a national security law it believes to be constitutional simply because it stands in the way of Democratic Party goals.
As former Justice Department advisors to presidents and attorneys general on the scope of executive power, we agree that Obama is constitutionally entitled to reach his own interpretations of federal law and to instruct his subordinates to follow them. Nonetheless, it is unprecedented for a president to disregard the views of senior Justice and Defense Department legal advisers on a statutory question like this. Moreover, the process by which the president made his determination was more than irregular. The Justice Department was apparently instructed to submit its views “informally” to the White House along with those of more pliant agencies, rather than prepare a legal position for the executive branch as a whole, as has been the regular practice in administrations of both parties for more than 40 years. Obama’s results-driven process makes a mockery of the idea that the Justice Department is the agency in charge of interpreting and enforcing the law for the executive branch.
Obama’s opinion that the U.S. is not involved in “hostilities” in Libya is not merely “aggressive.” It is utterly farcical — on a level with Bill Clinton’s legendary statement that “It depends upon what the meaning of the word ‘is’ is.”
The U.S. military mission in Libya involves firing missile strikes from drone aircraft — some of them obviously targeted at Libya’s ruler, Muammar Gaddafi, his family members, or leaders of his regime — suppressing Libyan air defenses; and providing intelligence, surveillance and reconnaissance to NATO allies. The Obama administration itself informed Congress this week that our military’s “unique assets” are “critical” to the NATO mission. The Pentagon estimates the cost of U.S. intervention at $1.1 billion through September 30.
If these are not hostilities, then what are? By Obama’s lights, President Nixon’s air campaign over Cambodia — the very kind of operation at which the WPR was aimed — would not count as “hostilities.” Nor would President Reagan’s decision to mine Nicaragua’s harbors, or President Kennedy’s Bay of Pigs fiasco. In those cases too, no U.S. ground forces were introduced; there was little to no risk of U.S. casualties; exchanges of fire were limited or non-existent. Likewise, by Obama’s test, a future president could launch multiple drone attacks on Venezuela if Hugo Chavez refused to step down — or even drop a nuclear weapon on downtown Caracas — without engaging the U.S. in “hostilities.”