House demands explanation from Obama on Libya

[Barrister]

Hasn't the White House, no matter which party is in power, repudiated the WPR?

No.  Each administration has stated that the WPA isn't binding on the President, and each has scrupulously adhered to it's reporting requirements.

Ah, so I was partially right, but not entirely.  Thank you for the clarification.

[jimmy olsen]

Boehner throws down the gauntlet. 

http://firstread.msnbc.msn.com/_news/2011/06/14/6858503-boehner-asks-obama-to-justify-legal-grounds-for-libya-mission

Boehner asks Obama to justify legal grounds for Libya mission

House Speaker John Boehner sent a letter Tuesday to President Barack Obama asking for a "clear explanation of the legal standing" the administration has to continue military operations in Libya after an upcoming 90-day mark.

Boehner says the White House will be in violation of the War Powers Resolution after this coming Sunday unless Congress authorizes the operation or the military withdraws.

The House voted earlier this month on a non-binding resolution that would have required the U.S. to pull out of Libya within 15 days. The vote failed 265-148, but 87 Republicans voted for the measure.

Libya has been wracked by conflict since February, after uprisings overturned governments in Tunisia on the west and Egypt to the east. There have been weeks of deadlock between the rag-tag rebel army and government forces, though air strikes by NATO that began in mid-March have taken their toll on Gadhafi's better-equipped troops.

Gadhafi's forces control the capital, Tripoli, while the rebels are based in Benghazi in the east.

Lawmakers on both sides of the aisle have expressed frustration with the administration's Libya policy. Liberal Democrats questioned the constitutionality of missile strikes there in March. In last night's GOP presidential debate, several 2012 hopefuls - including Rep. Michele Bachmann, who voted for the Libya resolution earlier in June - criticized Obama for a "flawed" policy enacted using "inadequate" intelligence about the rebels there.

Here is the full letter:

    Dear Mr. President:

    Five days from now, our country will reach the 90-day mark from the notification to Congress regarding the commencement of the military operation in Libya, which began on March 18, 2011. On June 3, 2011, the House passed a resolution which, among other provisions, made clear that the Administration has not asked for, nor received, Congressional authorization of the mission in Libya. Therefore, it would appear that in five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.

    Since the mission began, the Administration has provided tactical operational briefings to the House of Representatives, but the White House has systematically avoided requesting a formal authorization for its action. It has simultaneously sought, however, to portray that its actions are consistent with the War Powers Resolution. The combination of these actions has left many Members of Congress, as well as the American people, frustrated by the lack of clarity over the Administration's strategic policies, by a refusal to acknowledge and respect the role of the Congress, and by a refusal to comply with the basic tenets of the War Powers Resolution.

    You took an oath before the American people on January 20, 2009 in which you swore to "faithfully execute the Office of President" and to "preserve, protect and defend the Constitution of the United States." The Constitution requires the President to "take Care that the Laws be faithfully executed," and one of those laws is the War Powers Resolution, which requires an approving action by Congress or withdrawal within 90 days from the notification of a military operation. Given the mission you have ordered to the U.S. Armed Forces with respect to Libya and the text of the War Powers Resolution, the House is left to conclude that you have made one of two determinations: either you have concluded the War Powers Resolution does not apply to the mission in Libya, or you have determined the War Powers Resolution is contrary to the Constitution. The House, and the American people whom we represent, deserve to know the determination you have made.

    Therefore, on behalf of the institution and the American people, I must ask you the following questions: Have you or your Administration conducted the legal analysis to justify your position as to whether your Administration views itself to be in compliance with the War Powers Resolution so that it may continue current operations, absent formal Congressional support or authorization, once the 90-day mark is reached? Assuming you conducted that analysis, was it with the consensus view of all stakeholders of the relevant Departments in the Executive branch? In addition, has there been an introduction of a new set of facts or circumstances which would have changed the legal analysis the Office of Legal Counsel released on April 1, 2011? Given the gravity of the constitutional and statutory questions involved, I request your answer by Friday, June 17, 2011.

    From the beginning, the House of Representatives has sought to balance two equal imperatives regarding Libya which have been in direct contradiction: the House of Representatives takes seriously America's leadership role in the world; our country's interests in the region; and the commitments to and from its steadfast allies. At the same time, strong concern and opposition exists to the use of military force when the military mission, by design, cannot secure a U.S. strategic policy objective. The ongoing, deeply divisive debate originated with a lack of genuine consultation prior to commencement of operations and has been further exacerbated by the lack of visibility and leadership from you and your Administration.

    I respect your authority as Commander-in-Chief, though I remain deeply concerned the Congress has not been provided answers from the Executive branch to fundamental questions regarding the Libya mission necessary for us to fulfill our equally important Constitutional responsibilities. I believe in the moral leadership our country can and should exhibit, especially during such a transformational time in the Middle East. I sincerely hope the Administration will faithfully comply with the War Powers Resolution and the requests made by the House of Representatives, and that you will use your unique authority as our President to engage the American people regarding our mission in Libya.

    Respectfully, John A. Boehner

     

[Razgovory]

Tell him to take it up with McCain and Graham.

[Ed Anger]

He cried while writing that.

[Zoupa]

Republicans. 

[jimmy olsen]

How the hell did I miss this yesterday.

link

US Congress votes against Libya funding

(AFP) – 1 day ago

WASHINGTON — The US House of Representatives voted to prohibit the use of funds for American military operations in Libya.

Lawmakers adopted the amendment to a military appropriations bill by a vote of 248 to 163.

A number of members of Congress have recently expressed their dissatisfaction at President Barack Obama's decision to go ahead with operations in Libya in March and to continue without congressional authorization.

The amendment, introduced by Democratic representative Brad Sherman from California, invokes the War Powers Resolution, a 1973 law that limits presidential powers on sending troops abroad into combat zones without the consent of Congress.

Sherman's text states that "none of the funds made available by this act may be used in contravention of the War Powers Act."

According to the War Powers Resolution, the president must seek congressional authorization to send US troops into combat and must withdraw American forces within 60 days if Congress has not authorized the military action.

The same measure was presented in another bill to fund the Department of Homeland Security but failed to pass on June 2.

Lawmakers must still approve the appropriations bill as a whole and the measure must still be approved by the Senate.

The White House has been under rising pressure from congressional critics demanding details about US goals in Libya and questioning the likely costs and duration of the campaign, in which Washington now has a supporting role.

The House of Representatives recently passed a symbolic resolution chiding Obama for not seeking congressional approval for US involvement in Libya and giving him until June 17 to respond.

[CountDeMoney]

Republicans. 

Republicans supporting the troops. 

Can we be done with that myth already?

[Razgovory]

Great, now what?

[Admiral Yi]

Obama has responded that the activities of US forces in Libya are such that they are not subject to the War Powers Act.

Next move: Weeping Jimmy.

[Habbaku]

Obama has responded that the activities of US forces in Libya are such that they are not subject to the War Powers Act.

  "It's not illegal when the President does it."

[Admiral Yi]

The CNN hairdo who reported the story insuated that the argument rests on the fact that a) there are no troops on the ground and b) the US is not being fired upon.  Whether she got that from a background brief or made it up herself I couldn't tell.

[jimmy olsen]

The CNN hairdo who reported the story insuated that the argument rests on the fact that a) there are no troops on the ground and b) the US is not being fired upon.  Whether she got that from a background brief or made it up herself I couldn't tell.

Seems to be the main thrust of their argument, lets see if Congress buys it.

I don't think the act makes that kind of distinction

In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001543----000-.html

http://www.msnbc.msn.com/id/43414648
/ns/world_news-the_new_york_times/

By CHARLIE SAVAGE
The New York Times
updated 6/15/2011 3:59:01 PM ET 2011-06-15T19:59:01


WASHINGTON — The White House is telling Congress that President Obama has the legal authority to continue American participation in the NATO-led air war in Libya, even though lawmakers have not authorized it.

In a broader package of materials the Obama administration is sending to Congress on Wednesday defending its Libya policy, the White House, for the first time, offers lawmakers and the public an argument for why Mr. Obama has not been violating the War Powers Resolution since May 20.

On that day, the Vietnam-era law's 60-day deadline for terminating unauthorized hostilities appeared to pass. But the White House argued that the activities of United States military forces in Libya do not amount to full-blown "hostilities" at the level necessary to involve the section of the War Powers Resolution that imposes the deadline.

"We are acting lawfully," said Harold Koh, the State Department legal adviser, who expanded on the administration's reasoning in a joint interview with White House Counsel Robert Bauer.

Supporting role
The two senior administration lawyers contended that American forces have not been in "hostilities" at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes — although unmanned drones operated by the United States periodically fire missiles as well.

They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians.

"We are not saying the president can take the country into war on his own," Mr. Koh said. "We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of 'hostilities' envisioned by the War Powers Resolution."

The administration unveiled its argument at a time when members of Congress have shown increasing skepticism about the Libya operation. On June 3, the House of Representatives passed a resolution declaring that the mission had not been authorized.

On Wednesday, the Speaker of the House, John Boehner, Republican of Ohio, sent Mr. Obama a letter pointing out that even under a flexible interpretation of War Powers Resolution that would allow hostilities to last 90 days without Congressional authorization, Mr. Obama was out of time. Mr. Boehner demanded a legal explanation by Friday.

Boehner: Explain rationale
"Given the mission you have ordered to the U.S. Armed Forces with respect to Libya and the text of the War Powers Resolution, the House is left to conclude that you have made one of two determinations: either you have concluded the War Powers Resolution does not apply to the mission in Libya, or you have determined the War Powers Resolution is contrary to the Constitution," Mr. Boehner wrote. "The House, and the American people whom we represent, deserve to know the determination you have made."

It remains to be seen whether majorities in Congress will accept the administration's argument, defusing the confrontation, or whether the White House's response will instead fuel greater criticism. Either way, because the War Powers Resolution does not include a definition of "hostilities" and the Supreme Court has never ruled on the issue, the legal debate is likely to be resolved politically, said Rick Pildes, a New York University law professor.

"There is no clear legal answer," he said. "The president is taking a position, so the question is whether Congress accepts that position, or doesn't accept that position and wants to insist that the operation can't continue without affirmative authorization from Congress."

Ten members of Congress — led by Rep. Dennis Kucinich, Democrat of Ohio, and Rep. Walter Jones, Republican of North Carolina — filed a lawsuit on Wednesday asking a judge to order Mr. Obama to stop the air war. The suit asserts that the operation is illegal because Congress did not authorize it. That lawsuit faces steep challenges, however, because courts in the past have dismissed similar cases on technical grounds.

The administration had earlier argued that Mr. Obama could initiate the intervention in Libya on his own authority as commander-in-chief because it was not a "war" in the constitutional sense. It also released a memorandum by the Justice Department's Office of Legal Counsel agreeing that he could do so unilaterally because he anticipated that its nature, scope, and duration would be limited.

Shift in mission?
Since then, the conflict in Libya has dragged on longer than expected, and the goal of the NATO allies has all but openly shifted from merely defending civilians to forcing the Libyan dictator, Col. Muammar Qaddafi, from power. But Mr. Koh and Mr. Bauer said that while regime change in Libya may be a diplomatic goal, the military mission is separate, and remains limited to protecting civilians.

The administration legal team considered other approaches, including a proposal to stop the use of armed drones after May 20 in order to bolster the case that United States forces were no longer engaged in hostilities. But the White House ultimately decided not to make any changes in the military mission.

While many presidents have challenged the constitutionality of other aspects of the War Powers Resolution — which Congress enacted over President Nixon's veto — no administration has said that the section imposing the 60-day clock was unconstitutional. In 1980, the Office of Legal Counsel concluded that it was within Congress's constitutional power to enact such a limit on unauthorized hostilities.

Mr. Bauer and Mr. Koh said the 1980 memorandum remains in force, but that their legal argument does not invoke any constitutional challenge to the act.

It was not clear whether the Office of Legal Counsel has endorsed the White House's interpretation of what "hostilities" means. Mr. Bauer declined to say whether the office had signed off on the theory, saying he would not discuss inter-agency deliberations

Mr. Koh argued that the administration's interpretation of the word was not unprecedented, noting that there have been previous disputes about whether the 60-day-clock portion of the War Powers Resolution applied to deployments where — unlike the Libya operation — there were troops on the ground and Americans suffered casualties.

Still, such previous cases typically involved peacekeeping missions in which the United States had been invited to take part, and there were only infrequent outbreaks of violence, like those in Lebanon, Somalia and Bosnia. Libya, by contrast, is an offensive mission involving sustained bombardment of a government's forces.

The closest precedent was the NATO-led air war over Kosovo in 1999. In that case, the Clinton administration's legal team characterized the campaign, which involved many piloted American warplanes, as "hostilities" even though there was little exchange of fire from Serb forces after their air defenses were destroyed and there were no United States casualties.

In Kosovo, however, Congress appropriated specific funds for the mission before 60 days had passed. The Clinton administration decided that by providing the money, Congress had satisfied the requirements of the War Powers Resolution.

This article, "War Powers Act Does Not Apply to Libya, Obama Argues," first appeared in The New York Times.

[Sheilbh]

I entirely agree with Boehner - who I generally rather like - I wish that I didn't feel this was more motivated by the President's party than anything else.  But still it's a good.

[The Minsky Moment]

Seems to be the main thrust of their argument, lets see if Congress buys it.

I don't think the act makes that kind of distinction

I agree. 
As I read it, if a US controlled platform is delivering a payload to a target overseas (eg drone attack or a cruise missile) that is sufficient to trigger the act.  There is no requirement for boots on the ground, or any human being being put into fire.  The conditions are that "the United States Armed Forces" be "introduced" either (1) "into hostilities", or (2) into foreign territory or airspace while equipped for combat, or (3) "substantially" enlarging an already existing commitment.

Predator drones are part of the United States Armed Forces and they are both operating in foreign airspace while equipped for combat, and engaging in hostilities (what else could one call it when explosives are dropped on a target?)

This is the sort of thing we got from Gonzales and the Bush atty general's office clowns in the bad old days.

[Valmy]

This is the sort of thing we got from Gonzales and the Bush atty general's office clowns in the bad old days.

It just follows a tradition that the Executive Branch protects its authority no matter who the President is.