When President Obama ordered the U.S. military to wage war in Libya without Congressional approval (even though, to use his words, it did "not involve stopping an actual or imminent threat to the nation"), the administration and its defenders claimed he had legal authority to do so for two reasons: (1) the War Powers Resolution of 1973 (WPR) authorizes the President to wage war for 60 days without Congress, and (2) the "time-limited, well defined and discrete" nature of the mission meant that it was not really a "war" under the Constitution (Deputy NSA Adviser Ben Rhodes and the Obama OLC). Those claims were specious from the start, but are unquestionably inapplicable now.
From the start, the WPR provided no such authority. Section 1541(c) explicitly states that the war-making rights conferred by the statute apply only to "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." That's why Yale Law Professor Bruce Ackerman -- in an article in Foreign Policy entitled "Obama's Unconstitutional War" -- wrote when the war started that the "The War Powers Resolution doesn't authorize a single day of Libyan bombing" and that "in taking the country into a war with Libya, Barack Obama's administration is breaking new ground in its construction of an imperial presidency."
This really disappoints me because Obama's positions regarding the power of the executive, the rule of law, and his non-neoconservative foreign policy views were the big reasons I favored him over Hilary Clinton and most of the other Democratic candidates for president. Since getting into office Obama has done a 180 on nearly everything he opposed during his campaign, torture being the only one that comes to mind as one he has upheld.
And this is why I enjoy reading Glenn Greenwald so much. I largely agree with him on those issues I listed above. I try to stick to those principles regardless of the person or party in question. And Glenn does the same. He isn't afraid to call out a politician or party that he tends to favor over another.
Back to the topic of Libya, here is what I don't fully understand about this situation:
But even for those who chose to cling to the fiction that the presidential war in Libya was authorized by the WPR, that fiction is now coming to a crashing end. Friday will mark the 60th day of the war without Congress, and there are no plans for authorization to be provided. By all appearances, the White House isn't even bothering to pretend to seek one. A handful of GOP Senators -- ones who of course showed no interest whatsoever during the Bush years in demanding presidential adherence to the law -- are now demanding a vote on Libya, but it's highly likely that the Democrats who control the Senate won't allow one. Instead, the law will simply be ignored by the President who declared, when bashing George Bush on the campaign trail to throngs of cheering progressives: "No more ignoring the law when it's inconvenient. That is not who we are."
Why can't he just go to Congress? A lot of conservatives bashed Obama for not doing something right away in Libya. Granted, it wouldn't be at all shocking for them to now change their mind simply because Obama wants something. But at the beginning of this whole thing it looked like he might be able to get the House's support. And Democrats would find it hard to not authorize the president of their own party the power to carry out this war legally. Plus I don't hear any of them complaining about it right now. So it seems likely he would have the support of the Senate.
Congress can be a huge pain the ass. That's the way it was designed. But constitutional issues don't come a whole lot clearer than the power to declare war. For the most part that power resides with Congress, both through the declaration power itself and the power of the purse. The War Powers Act provides an exception, but it is a limited one. What Obama has done with Libya is to ignore both of those things and basically just go commando.
As I said, I've very disappointed with him. And I fear what precedent this will set for future presidents. I really, really don't want Sarah Palin being able to go to war with anyone and then just point to Obama's actions in Libya as a justification. That thought alone should be enough reason for liberals to join Greenwald in criticizing Obama and calling for him to live up to this campaign promises.