Gene Healy on Obama’s defense of war in Libya
As I noted yesterday, Obama Administration claimed this week that we are not at war in Libya. It’s an absurd suggestion that has even Rep. Dennis Kucinich (D-OH) giving credit to former President George W. Bush for at least obtaining approval from Congress before waging a misguided war in Iraq.
Yesterday, in response to Speaker John Boehner’s (R-IN) request, the president issued a new explanation for why he isn’t in violation of the [War Powers Resolution], which requires the president to terminate US engagement in “hostilities” after 60 days in the absence of congressional authorization. And it turns out that, per Obama, not only is the Libyan War not a “war,” what we’re doing in Libya—supporting, coordinating, and carrying out attacks—doesn’t even rise to the level of “hostilities.”
The president’s report states that he hasn’t violated the WPR, because “U.S. military operations are distinct from the kind of ‘hostilities’ contemplated by the Resolution’s 60 day termination provision”: they don’t “involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof.”
As Jack Goldsmith explains, “The Administration argues that once it starts firing missiles from drones it is no longer in ‘hostilities’ because U.S. troops suffer no danger of return fire.” ”The implications here,” Goldsmith notes, “in a world of increasingly remote weapons, are large.”
I’ll say: this is an extraordinary argument: The president can rain down destruction via cruise missiles and robot death kites anywhere in the world. But unless an American airman might get hurt, we’re not engaged in “hostilities.”
Put aside the strange argument that acts of war don’t rise to the level of “hostilities.” Given that outrage over the illegal bombing of Cambodia was part of the backdrop to the WPR’s passage, it would have been pretty strange if the Resolution’s drafters thought presidential warmaking was A-OK, so long as you did it from a great height.
As legal arguments go, this is the national security law equivalent of the Clinton perjury defense. It’s the type of thing that gives lawyers an even worse name. Or maybe law professors, because, speaking of Bill Clinton, Obama’s the second former constitutional law professor in a row to violate the War Powers Resolution.
And yet, Obama continues to insist he’s in full compliance with the WPR, and he has no objection to the resolution on constitutional grounds.
God help me, I think I just felt a twinge of nostalgia for John Yoo. Say what you will about the legal architect of Bush’s “Terror Presidency,” at least he had the courage of his bizarre convictions. When the statutes couldn’t be tortured into complete submission, Yoo would make the case that—whatever the law said—the president had the constitutional power to do as he pleased. That’s clearly what Obama believes as well, but you’re not going to catch him admitting it.