Cheney’s Lawyer Gives Obama Advice on War Powers

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Mandel Ngan / AFP / Getty Images

David Addington at the White House in Washington D.C., November 5, 2007.

House Speaker John Boehner has joined forces in an odd coalition with the left to declare President Obama’s continued military action in Libya a dangerous and potentially unconstitutional power grab because Obama failed to consult Congress sufficiently about the mission. Boehner is moving a bill today that will attempt to force Obama to end the mission by cutting off its funds.

But Boehner’s fellow Republican, David Addington, who was Dick Cheney’s chief of staff and the lawyer behind many of the most controversial and aggressive legal positions taken by the Bush White House, says Congress is the one making the power grab and that Obama’s mistake is that he has been too weak in resisting the Hill.

“Is it constitutional for the Congress, by passing a law, namely the War Powers Resolution, to command the President of the United States to withdraw military forces? In my view, no,” Addington said in an interview this week with TIME. Under Article 2 of the Constitution, the president has broad powers as commander-in-chief over the military.

Addington admits that no president has been willing to explicitly tell Congress to stuff the War Powers Resolution. “No president has just written down in plain English and mailed off to the Congress, ‘Look, this thing is unconstitutional. Forget it,’” Addington says. “They always use that fancy ‘this is not inconsistent with the war powers resolution,’ or ‘this is consistent with it.’”

But Addington thinks the President has tied himself in knots by deciding not to confront Congress. “There’s only two ways out of this. One is to say the War Powers Act doesn’t apply. The other is to say it applies, but it’s unconstitutional,” says Addington. Obama chose to go with the argument, provided by State Department and White House Counsel lawyers, that the War Powers Resolution didn’t apply because U.S. troops are not engaged in the “hostilities” the act requires be authorized after 60 days.

That’s hard to believe, since the U.S. is engaged in both manned and unmanned strikes against Libya and stands ready to do search and rescue in the country. “To say you have precision strikes and you’re prepared to provide search and rescue if somebody goes down in Libya sounds like hostilities, using the plain meaning of that word to most people,” says Addington. “So he sort of sacrificed credibility to avoid having to take the constitutional position.”

Instead of deferentially avoiding the question of Congress’ right to constrain the Libya mission, Addington says, Obama should have been explicit in telling Congress to back off. “The president would’ve been in a more sensible position,” Addington says. “By saying… the War Powers Resolution is an unconstitutional attempt by Congress to give military commands to the president.”

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