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Presidential power

June 21, 2011

Barack Obama and Congress are wrangling over the War Powers Act and whether it applies to Libya. Instead of quarreling Obama should heed Congress' sensitivities, says Barry Blechman.

Barry Blechman
Image: Stimson

Barry Blechman is the co-founder and a distinguished fellow at the Stimson Center in Washington DC.

The Obama administration has been criticized severely for its intervention in Libya. Both Republicans and Democrats have attacked the decision to intervene, the subsequent decision to take a back seat and let other NATO countries lead, and the failure of the alliance overall to prosecute the conflict with sufficient vigor to defeat a minor foe.

Each of these decisions can be explained, however, and the balance of right and wrong is not overwhelmingly on one side or the other.

What cannot be explained so easily is a fourth decision, one that has become the focus of the Libya debate in the United States: For reasons known best to the President, the administration's first ignored and then rejected the requirements of the War Powers Resolution:

It did not consult seriously with the Congress prior to committing military forces to this new conflict; until very recently it did not report to the Congress on the progress of the operation; and - despite the operation's continuance beyond the 90-day limit specified in the Resolution - it maintains that it does not require congressional approval to continue fighting the war in Libya.

Politically foolish

Not only is the administration's position wrong on its merits, it is foolish politically, as it challenges the prerogatives of the Congress and thereby causes Democrats, who might otherwise rally behind the President, to join the voices of Republican critics.

In this behavior, the Obama administration continues a decades-long struggle between the Executive and Legislative branches, a struggle intrinsic in the US constitution which causes institutional loyalties to trump partisan allegiances.

The constitution gives the Congress powers to declare war and to raise and support the armed forces, but makes the President the commander-in-chief of those forces and therefore, implicitly, gives him the power to deploy them as he sees fit.

Vietnam War

This conflict between the branches has arisen many times, but at no time more sharply than during the Vietnam War. In that conflict, two US presidents committed millions of soldiers to a 10-year long war. More than 50,000 Americans were killed, the US economy was nearly wrecked, and the country was divided more bitterly than at any time since the Civil War.

Presidents Johnson and Nixon conducted the war without a congressional declaration of war, citing the 1964 Tonkin Gulf resolution and continuing congressional appropriations for the war effort as all the authority they required.

Beginning in 1968, there were multiple attempts in the Congress to limit US involvement in Indochina, but with only the power to end funding for the war effort, and thus leaving themselves exposed to charges of stranding US troops on a battlefield, these efforts were largely unsuccessful.

Veto by Nixon

The War Powers Resolution was the result, requiring the President to consult with, report to, and in certain circumstances seek congressional authorization to maintain US forces in a conflict. It was passed in 1973 over President Nixon's veto; he said it would place restrictions on, "authorities that the President has properly exercised under the Constitution for almost 200 years."

This viewpoint has been shared by every one of his successors. And every one of them has complied with the terms of the Resolution with great reluctance, and to the minimum degree required by the political circumstances of the time.

The Resolution gives presidents an out when it comes to consultations, requiring them "in every possible instance."

Presidents have walked happily through this loophole. Citing needs for secrecy and urgency, they typically have informed Congress of decisions already taken, rather than consulting on the wisdom of an operation prior to a decision.

The last time War Powers was relevant to Libya, for example, in 1986 when President Reagan ordered a retaliatory air strike on Gadhafi's living quarters (sound familiar?), congressional leaders only were informed after the planes had already taken off. President Obama similarly made his decision about Libya prior to congressional consultations.

The Resolution also requires presidents to report to the Congress when the armed forces are introduced into situations of actual or imminent hostilities - and in certain other circumstances. When the report is submitted, it starts a 60-day clock; once 60 days have passed (or 90 days if the president requests an extension), the forces must be withdrawn unless the Congress authorizes continuation of the operation.

Debate over constitutionality

All presidents issuing such reports have generally avoided linking the report to the provision that would start the clock. They also state that the report is being submitted "consistent with" the provisions of the Resolution, rather than "in compliance with" or "pursuant to" the Resolution, thus perpetuating the executive branch's position that the Resolution is unconstitutional.

Members of Congress have challenged this position in the courts on several occasions, but the Judiciary has always refused to get in the middle of this fundamental conflict between the two branches.

In the case of Libya, the administration's position that it does not require congressional authorization, even though the conflict has continued beyond 90 days, because the US is in a supporting role in Libya, is preposterous on its face, a view apparently shared by both the Defense and Justice departments' general counsels.

US forces, whether the aircraft and naval vessels that fired missiles at the beginning of the conflict, or the personnel operating drones that fire missiles, or the crews manning intelligence, surveillance, and refueling systems, are clearly involved in situations of actual hostilities.

Satisfy congressional sensitivities

President Reagan became involved in a needless controversy over War Powers during the so-called tanker war in the 1980s, when the US Navy was protecting Kuwaiti tankers from Iranian attacks.

It distracted both branches from the real issues on the table and got in the way of the war effort before cooler heads found a way for the executive branch to comply that placed no real constraints on the effort and did not challenge its position on the Resolution's constitutional illegality.

Presuming it wishes to see the Libya conflict through, the Obama Administration would be wise to stop thumbing its nose at the War Powers Resolution and find a way to satisfy congressional sensitivities on the issue.

Editor: Michael Knigge/Rob Mudge