Did Obama Win on War Powers?

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In his press conference on Wednesday, President Obama tried to embarrass Congressional opponents of the military mission in Libya for making it a “cause celebre.” And in some ways he has emerged the victor in his confrontation with Congress over the War Powers Resolution. Last Friday, the GOP-led House failed to pass a bill that would cut off funds for Obama’s more than 100-day military mission against Libya. It then failed to pass a bill that would authorize it. And finally on Tuesday the Senate Foreign Relations Committee voted to authorize the mission. But a review of Obama’s first real confrontation with Congress over war powers hardly looks like a clean win for the administration.

When it became clear that Gaddafi might well outlast the 60-day limit on hostilities imposed by the War Powers Resolution, administration lawyers held a conference call to figure out how to address the issue. Defense Secretary Gates has said publicly he opposed the mission in Libya, so not surprisingly his top lawyer, Jeh Johnson, opposed continuing the intervention as it was being carried out without Congressional approval, according to administration officials familiar with the debate. Lawyers from the elite Office of Legal Counsel at Justice also opposed continuing without authorization. As The New York Times reported on June 18, the legal adviser for the State department, Harold Koh, argued that Congressional authorization was not required because the conflict in Libya no longer constituted hostilities, a legalistic and not particularly credible position.

The disagreement ended up in front of the President. Obama met with Mary DeRosa, his top National Security Council lawyer, Bob Bauer, his White House Counsel, William Daley, his chief of staff, and Denis McDonough, his Deputy National Security Adviser on the subject, and though legalistic and non-credible, Koh’s argument had the advantage of putting the ball back in Congress’ court. Obama came down on the side of arguing that the action in Libya no longer constituted hostilities and the White House made that case to Congress in a 38-page report days before the May 20 60-day deadline.

If Obama thought Congress would avoid a public confrontation and accept the implausible argument that U.S. forces were not engaged in “hostilities” he was wrong. Congressional opponents emerged in both parties trying to limit the mission, and the Times revelation of dissent in the administration only made matters worse. A senior administration official now admits that relying on the definition of “hostilities” is not a strong defense. “This isn’t about a dictionary definition of a particular word, but how does this [mission] fall within the range of precedents,” the official says.

Koh made that argument to the Senate Foreign Relations Committee on Tuesday and if it didn’t convince many, it sufficed to win a 14-5 vote supporting the mission. In that sense, the administration’s strategy of sending the ball back to Congress has worked. Likewise, Deputy National Security Adviser Denis McDonough briefed House Democrats last Friday about the nature and duration of the mission in the White House Situation Room, hours before they were to vote on restricting it, and that helped avoid a House restriction on the mission.

But the episode has convinced the left that Obama is increasingly acting like George W. Bush. As someone who contributed to the early formation of the Obama-as-Bush meme, I think it has jumped the shark. Bush told Congress it could not restrain him in any way when he was acting as commander-in-chief. Obama is doing exactly the opposite: tying himself in legalistic knots to avoid such an outright power grab. Others on the left have argued that Obama’s end-run around the Justice department lawyers to accept Koh’s argument is another Bush-like maneuver. But it was the Justice department’s accepted authority as the sole arbiter of legal opinion that contributed to Bush’s excesses: rather than having an internal debate, Bush only had to get one lawyer at Justice, John Yoo, to sign off on extreme measures. The one comparison that holds up is that Obama didn’t adequately make the case for intervention with the American people before rushing to attack in March.

In the win column for Obama, he has avoided having to end the mission, which the administration says would result in civilian deaths in Libya. It could also result in a damaging collapse of the NATO-led effort and an embarrassing military failure that leaves Gaddafi in place. But it leaves the administration having to convince the public it is making progress against Gaddafi, just not in a hostile way. For example: “The President made the decision in mid-April to re-arm the Predators because their cost-effectiveness and precision – in addition to the reduced risk to U.S. personnel – allowed the United States to help the opposition make important advances in Misrata and Tripoli, where regime forces had changed tactics and were hiding materiel and resources in tightly packed civilian areas,” Deputy National Security Adviser Denis McDonough tells TIME. “To do so was not only important strategically, but it was also done in a manner consistent with the limited nature of the involvement as spelled out by the State Department Legal Adviser on Tuesday.”

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