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Libya and the WPA

[ 36 ] June 18, 2011 |

I’ve essentially become resigned to executive branch domination of foreign policy — the only thing that can stop it is for Congress to actually assert its prerogatives, and there’s no reason to believe it will do so.    Still, the DOJ lawyers were right: the idea that the attacks on Libya don’t require congressional authorization is not serious, and it represents a further erosion of checks within the executive branch.

Comments (36)

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  1. Whether a mission that included no combat operations at all, just support, counts as “hostilities” is an interesting question.

    But the drone strikes are clearly hostilities.

    Between this decision and the CIA strikes in Pakistan, this administration is establishing a doctrine that air strikes carried out by drones are not subject to the procedures and laws established for military action. I find that quite a bit more disturbing than the longstanding doctrine that presidents can engage in military action as long as it’s limited in scale. That ship has sailed, and this operation is a lot smaller and more limited than many that other presidents have carried out, but this question about drones is significant.

    • DocAmazing says:

      Yeah, nothing hostile about a cruise missile.

      • The administration’s argument that actions that don’t subject our troops to danger aren’t “hostilities” under the WPA seems to suggest that the Congress’s interest in war powers is only about the well-being of our personnel, but that’s just wrong. Congress has a big role to play in decisions about the use of our resources and our relations with other countries.

  2. Incontinentia Buttocks says:

    Under Bush, the White House hired lawyers who would produce ridiculous rulings enhancing executive branch powers to levels in clear violation of the Constitution.

    Under Obama, the White House hired decent lawyers who rightly point out when the President is claiming executive branch powers that are in clear violation of the Constitution. And then the President ignores them.

    This is change we can believe in!

    • Actually, if you’d read the article, you’d have discovered that quite a few of those decent lawyers argued the other side, and Obama sided with them.

      • Incontinentia Buttocks says:

        You really are incapable of treating me with even a modicum of respect, joe!

        In this case, other than your snarky suggestion that I didn’t read an article that I did actually read (before reading Scott’s post, in fact, not that the fact of the matter will make any difference to you), nothing you say remotely touches on anything of substance that I said in the comment you’re responding to.

        But if you want me to amend it to provide a more complete picture of Obama’s actions, here goes:

        Under Bush, the White House hired lawyers who would produce ridiculous rulings enhancing executive branch powers to levels in clear violation of the Constitution.

        Under Obama, in addition to hiring the Bush-administration-like lawyers willing to provide whatever answers the President wanted to hear, the White House hired decent lawyers who rightly point out when the President is claiming executive branch powers that are in clear violation of the Constitution. And then the President ignores them listens to the Democratic versions of the Bush lawyers anyway.

        This is change we can believe in!

        The bottom line here is that, as Scott suggests, there is a Constitutional fact-of-the-matter here, whatever the John Yoos, Jay Bybees, Harold Kohs, or Robert Bauers might be willing to tell their bosses. It’s not just a question of he said/she said.

        • nothing you say remotely touches on anything of substance that I said in the comment you’re responding to.

          Except for the part where you wrote

          the White House hired decent lawyers who rightly point out when the President is claiming executive branch powers that are in clear violation of the Constitution. And then the President ignores them.

          With notably few exceptions, Barack Obama ignores the decent lawyers he hires.

          in addition to hiring the Bush-administration-like lawyers willing to provide whatever answers the President wanted to hear,

          Oh, I see. Harold Koh is a “Bush-administration-like lawyer.” You know, like Yoo or Goodling or Gonzales or Libby. And we can tell this because he didn’t give the answer you wanted him to give on this question. Uh huh.

          The bottom line here is that, as Scott suggests, there is a Constitutional fact-of-the-matter here

          Scott doesn’t say any such thing, and anyone with even the vaguest understanding of American history and jurisprudence would understand that the question of where to draw the line between the President’s Commander-in-Chief powers and Congress’s War Powers is one of the least-settled, most hotly-debated issues in the law, and has been for about two centuries.

          But you don’t know that. You take a stance indistinguishable from “What part of ‘shall not be infringed’ don’t you understand?” and pretend that there is no controversy, so anyone who doesn’t automatically accept your denunciation is John Yoo. I have my opinions about War Powers, too, probably not that different from yours, but I don’t pretend that my VERY STRONG FEELINGS mean that the question is settled.

          • Asteele says:

            you have a president to defend, how could your feelings matter.

          • timb says:

            actually, joe, from a class I took in law school, I would say that the place where the Executive branch power and Legislative power meet is, unfortunately, very settled law, i.e the damn president can do what he wishes because the Courts will NOT reign him in and Congress will not de-fund operations. All the President has to withstand is the whining of liberals and Ron Paul types and he can do what he wants.

            Still, you are correct, that IB mis-represented the article and IB is right that the President chose to ignore common sense advice reflecting the obvious in favor of the opinion that increases Executive Branch power. The fact that it no more makes him more Bush-like than it makes Bill Clinton like or George HW Bush-like is lost in the “President is not a real liberal like me” tantrum that the Left continues to engage in.

            This lefty just shakes his head at the mystery of it all

            • Ed says:

              The fact that it no more makes him more Bush-like than it makes Bill Clinton like or George HW Bush-like is lost in the “President is not a real liberal like me” tantrum that the Left continues to engage in.

              This lefty just shakes his head at the mystery of it all

              This lefty just shakes his head at the remarkable way in which the President’s most loyal supporters ingeniously define expectations down on occasions like this. Also the way anger is displaced onto those who are rude enough not to fall in line automatically.

  3. clever screen name says:

    It’s far worse than what Bush did. Obama has taken Bush policies that were once controversial and given them bipartisan legitimacey. The Empire can now torture, detain people with out trial, bomb foreign countries, go after whistleblowers like Julian Assange etc. at will now.

    • Joe says:

      Where did Obama say torture was okay?

      His AG is giving speeches stating that trying people is important in the face of bipartisan yawns or full opposition. The fact CONGRESS blocked them isn’t really HIS fault.

      The U.S. always could “bomb foreign countries” unless WWII was illegal or something.

      I’m not sure how much he is really going “after” Assange but “whistleblowers” legally have to be go through proper channels. If some anti-Obama NSA agent wants to print secrets in the World Daily or something, s/he doesn’t get off if he says he is a muckraker.

      Still not seeing how Obama is “far worse” than Bush. Hint: the fact they are too similar in some ways doesn’t do the trick.

  4. jeer9 says:

    I cannot comprehend why people (especially IB) are being so harsh with all their criticism lately of Obama and the Dems. The party’s shift rightward has been a decades-long process, and he’s doing the best he can in a very hostile political environment. Sure, he could have pushed harder for more liberal legislation when he had large majorities in both houses, hired more reformers instead of hacks as advisors, coaxed the DoJ to investigate criminal behavior in the Bush/Cheney kleptocracy and the financial industries, but he was repeatedly betrayed by the Left’s lack of support, then abandoned by the independents in 2010, and now must fend off the newly empowered but still obstructionist Right with what few devices he has remaining: negotiation and compromise. Fortunately, he is an expert on such matters. And he is even further blessed in that his future opposition (Romney/Bachmann, Perry/Pawlenty) has a track record of staggering incompetence. No one could possibly choose either clownish pairing after reflection upon the efforts this administration has put into ameliorating the unemployment crisis, mitigating the foreclosure disaster, or curtailing the billions wasted on war. Let these know-nothing harpies drone on all they want with their empty, senseless protest. Their bombs of self-absorbed complaint fall upon deaf ears and unseeing eyes. Our fealty stands unscathed and unshaken, like a Tihama hut in Yemen. Next year’s election may seem like a Republican primary, but it is definitely not. (Foot stamp.) If Obama were to be challenged from the Left, his loss would be assured for he would be deserted once again by treasonous liberals who don’t understand how good they’ve got it. You think the War Powers Act is being ignored now? That Libya has “hostilities” now? Your sense of discrimination is in need of some serious fine-tuning, my friends. Obama is our only hope.

    • timb says:

      hey, jeer, 2 things: First, you heard of the filibuster, right?

      Secondly, and this is not snark, what made you EVER think Obama was a liberal or would govern as one. He is not a liberal.

      • jeer9 says:

        Yes, yes, the filibuster can stop any liberal legislation from moving forward. Be happy with incrementalism: Lily Ledbetter, etc. But what has the filibuster to do with the appointments of Geithner, Summers, and Bernanke or DoJ investigations, or, for that matter, HAMP and drone attacks? You should read Walter Karp’s Indispensable Enemies. The whole fraudulent Dem playbook’s included fifteen years before the fact. And I never thought BHO was a liberal. It’s his supporters telling voters we should be proud of his accomplishments as a Democrat that frustrate me. I don’t recognize many Democratic attributes that he possesses (the Libya/WPA ruling just re-affirms that view) and it confuses the low attention span citizen when distinctions between the two parties become so blurred. (Not that the parties care, mind you; the duopoly wins when apathy triumphs.) But then maybe you’re one of those observers who believe it’s impossible to nominate a candidate who will actually work for popular progressive policy positions rather than just mouth the platitudes on the hustings and then go about his neo-liberal skullduggery once in office. Politicians are hypocrites interested in power and their own glory; wake up and be a realist, etc., etc. I think we’ve been around this track once before. And so to bed.

    • Parah Salin says:

      Axelrod has a job for you. :P

  5. David Kaib says:

    As long as the status quo remains the same, these continuing expansions of executive power are inevitable. I will not resign myself to executive branch domination because the only path to stopping continued expansion is for voters to start blaming members of Congress for their role. (Note, one can blame a member of Congress for congressional abdication and still also blame individual presidents for their role too – there is no need to choose). If a member of Congress knew that they would face the heat for a president’s choices unless they push back, they would push back.

    • What expansions?

      Reagan and Bush 41 unilaterally (without UN authorization) invaded countries, overthrew their governments, and installed new ones with no Congressional vote whatsoever. They asserted a Presidential power to do that without a vote in Congress.

      Asserting the power to conduct drone strikes and fly non-combat missions in a UN operation certainly isn’t an expansion from that.

      • David Kaib says:

        Scott helpfully provided a link on this question:

        Still, the DOJ lawyers were right: the idea that the attacks on Libya don’t require congressional authorization is not serious, and it represents a further erosion of checks within the executive branch.

        Also, my memory may be failing me, but I don’t remember any of the actions during the presidencies you mentioned lasting more than 60 days – which used to be one conceit for pretending to follow the WPA. Since I don’t think the UN can authorize a president to go to war without congressional assent, and the WPA also rejects that claim, the fact of UN authorization doesn’t matter much to me. (None of this is to suggest that those earlier presidents were respectful of constitutional limitations regarding war – they most certainly were not).

        Regardless, even if something has been done before (for example, using an end run around the OLC) that doesn’t mean it’s not a problem for another president to do it. When Obama (or Clinton before him) follow Republicans precedents, that makes them bipartisan precedents, and further entrenches them.

        • …and, obviously, I disagree with that opinion. The procedural question therein aren’t about the question of executive power, as opposed to legislative power or judicial power, but about decision-making within the executive itself. You yourself wrote:

          I will not resign myself to executive branch domination

          Is the issue of executive power about the executive branch dominating itself? About one part of the executive dominating another? No, as your words correctly express, the issue is about the executive expanding its power over, and to the detriment of, the other branches of government.

          I don’t remember any of the actions during the presidencies you mentioned lasting more than 60 days

          On the other hand, they involved the actual conquest of, occupation of, and political control of, another country. Odd standard for you to seize on when judging a military action’s scope.

          Regardless, even if something has been done before…that doesn’t mean it’s not a problem for another president to do it.

          I only took exception to your assertion of an expansion. The matter of continuation of a bad policy is a different question, and one that I agree with you about.

          When Obama (or Clinton before him) follow Republicans precedents, that makes them bipartisan precedents, and further entrenches them.

          Except that this “precedent” of the president conducing operations short of full-scale war was a “bipartisan precedent” before the Republican Party was even founded. That ship sailed centuries ago. Talking about this in terms of not establishing or entrenching a precedent is absurd. You might as well say you don’t want to “entrench” the precedent of co-educational classrooms or driving in the right lane, except that those “precedents” are much newer.

          You’re talking about overturning long-established practice – which would be great, but conceiving this as a fight to stop a new expansion is misguided. It’s easy to prove wrong the argument that this claim of executive power is new. The real argument is about the current state of executive power.

          • David Kaib says:

            To take only first of your multitude of objections:

            The procedural question therein aren’t about the question of executive power, as opposed to legislative power or judicial power, but about decision-making within the executive itself.

            The Admin asked for an unofficial opinion from the OLC, as well as from others. Part of the purpose of the OLC is to act as an internal check on the executive. The only reason for this irregularity is because they had already decided the answer and were looking for someone to support it. (I don’t object to the president overruling the OLC – which probably should happen rarely but is not necessarily problematic.)

            Like the SC, which has numerous rules (not always hard and fast ones) which are designed to help the Court keep itself in check, the OLC is supposed to do this for the executive. If the executive branch refuses to check itself, it has obvious implications for the power of the other branch (especially in an area that Congress is too deferent and the judiciary largely refuses to tread).

            • Ed says:

              The Admin asked for an unofficial opinion from the OLC, as well as from others. Part of the purpose of the OLC is to act as an internal check on the executive. The only reason for this irregularity is because they had already decided the answer and were looking for someone to support it.

              That appears to be exactly what happened. Instead of having the OLC solicit the views of other agencies and then submit an interpretation to the president, as is customary, the other agencies were consulted indepedently by the executive. Plainly, Obama was shopping for some tame lawyers who would give him the answer he wanted and did not want to risk being presented with a single conclusion that he might not want.

              • jeer9 says:

                Balkin offers pretty much the same opinion. Every time BHO does something so brazenly stupid as to make me think his re-election is not certain, I visit Buffoon Juice and my confidence is restored. Of course, re-election with 9%+ unemployment over two years will be quite an accomplishment – in fact, the accomplishment of his tenure. Funny how the benefits always seem to be tilted in one direction.

  6. Liberal Chickenhawk says:

    The Denial from my fellow Liberals is really something to behold.

    For those admirers of Obama’s Libya policy, you are aware that your local recruiter’s office is accepting applications.

    Bush went to Congress and got approval whether you believe it was right or wrong is immaterial. Obama has bypassed any measure of legality by opting for the position that a UN “mother may I?” on alleged humanitarian crisis grounds overrides the need for Congressional approval.

    For years everyone criticized Bush for behaving like a dictator but when Obama behaves worse than Bush ever did you sit here and make excuses.

    Don’t even talk about Project Gunwalker yet. Impeached before the end of his first time may be Obama’s greatest legacy.

  7. joe from "O" says:

    How dare you question Our Savior! Nothing to the left of Obama is our slogan! Hail The Leader!

    • Between this decision and the CIA strikes in Pakistan, this administration is establishing a doctrine that air strikes carried out by drones are not subject to the procedures and laws established for military action. I find that quite a bit more disturbing than the longstanding doctrine that presidents can engage in military action as long as it’s limited in scale.

      How dare you question Our Savior! Nothing to the left of Obama is our slogan! Hail The Leader!

      Funny.

  8. joe from "O" says:

    More drone strikes! More wars! More torture! More executive power! More PATRIOT ACT! More indefinete detentions! Hail our Leader Obama!

  9. Dead Muslim Civilians says:

    Not much difference between Obama and Bush to us.

  10. Obama’s Sense of Timing: Curiouser and Curiouser!

    “Charlie Savage writes that President Obama took the unusual step of overruling the head of the Justice Department’s Office of Legal Counsel and the top counsel for the Defense Department in order to conclude that the U.S.’s participation in the war in Libya did not amount to “hostilities or “imminent hostilities.” This meant that the 60 day clock in the War Powers Resolution did not continue to run. Hence, Obama was able to conclude that he was not in violation of the WPR’s 60 day requirement because “hostilities” or “imminent hostilities” had not occurred since the beginning of April.”

    I’m late! For a very important date! No time to say hello, goodbye! I’m late! I’m late! I’m late!

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