TOPICS > Politics

Libya, War Powers Start White House, Congress on Collision Course

June 15, 2011 at 12:00 AM EDT
The Obama administration said Wednesday that the U.S. is not engaged in sustained fighting in Libya and has no troops on the ground, so there's no need for congressional approval. Jeffrey Brown discusses the War Powers Resolution legal wrangling with American University's Jamin Raskin and The New York Times' Charlie Savage.

JEFFREY BROWN: And, for more, we turn to Jamin Raskin, professor of constitutional law at American University’s Washington College of Law, and Charlie Savage, domestic correspondent for The New York Times.

Charlie, start us off by explaining some of the pressure that has built up from Congress. Its concern over the scope of the mission, questions of legality. What are you hearing?

CHARLIE SAVAGE, The New York Times: There’s definitely been — as you — you used the word restive. That’s a good word. Increasingly, members of both parties in Congress, especially in the House of Representatives, have been asking questions about how is it that the United States has gotten itself involved in this NATO-led air war in Libya, whether the president had the legal authority to do that on his own, whether he still has it now that — now that it’s dragged on under the War Powers Resolution, how much it’s costing, who’s really on the ground in Libya that we’re helping out.

And there was a bipartisan rebuke, as you said, a couple weeks ago in the House. And now yesterday, with this letter from Speaker Boehner, pressure on the legal theory bolstering all this is ramping up.

JEFFREY BROWN: So, there was a response today. You have had a chance to take a look. What — what are the main arguments?

CHARLIE SAVAGE: Well, the argument that the administration is putting forth is that the War Powers Resolution, which is a 1973 law that says that, if the president has initiated hostilities on his own, without congressional permission, he has to terminate them after 60 days, a deadline that appeared to pass on May 20, that that law doesn’t apply to what the U.S. military is doing in Libya.

The constellation of activities that we’re doing there, refueling, surveillance, some drone strikes, and other supporting role to our NATO allies, doesn’t rise to the level of hostilities, as it — under that law, because U.S. forces aren’t on the ground. The Libyan forces are not returning fire on the U.S. There’s not a risk of casualties. And the whole thing is constrained by the U.N. Security Council resolution to a limited mission.

Their argument is an assertive interpretation, to say the least, of this statute. And it will be interesting to see how Congress responds to it.

JEFFREY BROWN: All right, well, Jamin Raskin, let me turn to you for some background on this resolution we’re talking about. As Charlie said, 1973, comes out of the Vietnam War. What was it intended to do?

JAMIN RASKIN, American University’s Washington College of Law: Well, Congress was interested in restraining what it saw as an imperial presidency. And, at that point, of course, it was Richard Nixon. And they saw him as someone who’d been pursuing aggressively, along with prior presidents, an undeclared, unauthorized war in Vietnam.

And the dilemma they saw was that if presidents could get the country into war without a congressional declaration Congress would never be able to pull the country out, because the refrain would be, you have got to support the troops.

So, their thought was, either we should be declaring a war or we will give a limited window, this 60-day window, for the president to initiate hostilities, that it would — that the president would notify Congress of after 48 hours, and then would have to get out within 60 days unless there was an intervening authorization by Congress of the conflict.

Most presidents have sort of dodged the legal authority of the War Powers Resolution.

JEFFREY BROWN: What does dodged mean?


JEFFREY BROWN: I mean, they have pushed back, they have ignored or pushed…

JAMIN RASKIN: Some have asserted it’s unconstitutional.


JAMIN RASKIN: Others have filed reports — many have filed reports in compliance with it, but they say that it’s not pursuant to the War Powers Act, but it’s consistent with the War Powers Resolution.

And I noticed that the Obama letter also uses the language about consistency with the War Powers Resolution. But what’s interesting to me is that the president today didn’t cast doubt on the constitutionality of the War Powers Resolution. He’s doing whatever he can to avoid a head-on collusion with Congress.

He’s simply saying that the current conflict doesn’t rise to the level of hostilities within the meaning of the War Powers Resolution. And that argument appears to have been worked out by Harold Koh, who is a key lawyer in managing this war effort.

JEFFREY BROWN: Yes, Charlie, so step in there. How much went into the behind-the-scenes to try to construct the right sort of language to fit into this long-running debate that the professor is talking about?

CHARLIE SAVAGE: Well, it’s something of a black box, but as best as I can tell, there has been weeks of deliberations.

We know that one theory that was played with for a while was whether they should stop using armed drones after May 20. There would then be no direct strikes by U.S. forces and they could make — that might bolster the case that this is not hostilities.

Ultimately, the White House decided not to go that route, to leave the mission unchanged, and simply to say that what you’re seeing is not hostilities as we interpret it.

JEFFREY BROWN: Now, Jamin Raskin, if the question is a question of the definition of hostilities, are there legal definitions to help? The Supreme Court has not weighed in on this, correct?

JAMIN RASKIN: The Supreme Court has offered no elucidation of the term. There’s nothing in the statute that elaborates on the definition. It’s sort of self-defining or self-presenting in the statute.

And, of course, it’s very unlike that a court will ever come to look at it.


JAMIN RASKIN: The court — the court is notoriously diffident about dealing with foreign policy and war powers questions. I mean, you’re dealing with a situation where Congress has a pretty rightful claim to power. Congress has the power to declare one under Article 1, Section 8 of the Constitution. It’s got the power over international commerce. It’s got a power to raise armies and navies, and it’s got a power to set the rules of war.

But the executive has the power to be the commander in chief of the armed forces during a time of actual conflict. And the way that the executive branch has interpreted that, Democrat and Republican alike, is that it must act with dispatch in pursuit of the national interest and the national defense.

And Congress sometimes will assert its prerogatives, and other times will be very nervous about doing it. And, oftentimes, it gets caught up in the politics of the particular war that is being talked about…

JEFFREY BROWN: That’s interesting, because the one thing you just said, it’s not exactly a partisan issue, but it certainly becomes a political issue.

JAMIN RASKIN: It’s certainly political.

I mean, there was a lawsuit brought today by Dennis Kucinich on the left side of Congress and Congressman Jones, a conservative Republican who’s turned into a major critic of the Iraq war, as well — you know, as well as some other progressive members of Congress like Conyers and other conservatives.

And they basically are trying to reassert the congressional role and sovereign place in war-making. But that’s a tough row to hoe basically ever since World War II. And someone who’s written a lot about that is Harold Koh himself. He wrote a whole book about “The National Security Constitution” and the way that our understanding of war powers has been transformed since nuclear weapons.

JEFFREY BROWN: Well, so, Charlie, take us back then to the political battle, where it’s likely to continue. What are you hearing in reaction today, and what happens next?

CHARLIE SAVAGE: Well, this document just went over to the Congress, so we don’t have a reaction yet to point to see whether — one outcome could be that this theory will basically be acquiesced to by majorities in Congress, and it will be sort of a face-saving way for everyone to stand down.

Another possible outcome is it will annoy people and further enrage the fringes as it moves toward the center of people who are upset with what happened in Libya and what continues to happen in Libya.

I would emphasize, though, that, when you look back over, not just this conflict, but the last several decades of disputes over executive vs. congressional war-making authority, what you said earlier about this not being a partisan issue is quite correct, even though it’s highly politicized.

What tends to happen is whichever party is not in control of the White House suddenly in Congress is very concerned about their institutional role and critical of a commander in chief they see as usurping that authority. Then there’s an election, and that party gets into office, and suddenly all those people get very quiet, and people who were supporting the White House suddenly find themselves quite concerned about executive unilateralism.

This will probably prove to be no exception.

JEFFREY BROWN: All right, Charlie Savage of The New York Times, Jamin Raskin of American University, thank you both very much.

JAMIN RASKIN: Thank you.