A remarkable purple moment has occurred regarding the president’s legal decision to define “hostilities” as not having taken place in the U.S. operations in Libya, and thus declaring that there was no need to seek congressional authorization under the War Powers Act.
Conservative Republicans and liberal Democrats don’t agree on much these days in the Congress, but President Barack Obama’s decision has managed to bring many of them together in insisting that the president has not complied with the War Powers Act regarding Libya.
The act was passed in 1973, largely pushed by liberal Democrats in the aftermath of the Vietnam War. Anti-war Democrats (and some Republicans, too) saw the Vietnam War as an example of misuse of the president’s war powers — taking the nation to war without obtaining a congressional declaration of war as required by the Constitution.
The War Powers Act did not define “hostilities.” It required a president to terminate a mission 60 to 90 days after notifying Congress that troops had been deployed into hostilities unless both houses of Congress authorized the operation to continue.
So it’s ironic that it is a liberal president and some of his top legal advisers who have resisted applying the act strictly. Instead, they straddled the issue by not challenging the constitutionality of the act, but rather, by narrowly defining the definition of the word “hostilities” so the act didn’t apply to U.S. involvement in Libya.
They argued that there were no “hostilities” as that word was intended under the War Powers Act at least since April, when NATO took over the responsibility for the no-fly zone, with the U.S. shifting to primarily a supporting role, such as providing surveillance and fueling for allied war planes.
But other top legal advisers in Obama’s administration, such as the Department of Defense general counsel, the head of the Office of Legal Counsel (usually a binding legal adviser on such issues), and Attorney General Eric Holder disagreed with this narrow definition of “hostilities.” So did leading liberal Democrats in the Congress, such as Illinois Sen. Dick Durbin and Rep. Dennis Kucinich of Ohio.
What is unusual here is that President Obama chose to accept a linguistic legal analysis rather than a political one to thread the needle on this issue. Surely Obama must know that his definition of “hostilities,” excluding the U.S. shooting missiles from Predator drones or air strikes aimed at suppressing enemy air defense, is a stretch at best.
The question is, why go there? Why not, instead, go to Congress and seek authorization?
If Vietnam taught us anything, it is that a “limited” military commitment can lead to a major national commitment — such as Vietnam, in which more than 50,000 Americans lost their lives over more than 10 years without a congressional declaration of war.
On Tuesday, Sens. John Kerry, D-Mass., chairman of the Foreign Relations Committee, and John McCain, R-Ariz., did the right thing: They introduced a resolution, supported by leading liberal and conservative senators, that would give President Obama authority to continue limited military operations in Libya, but would require him to come back to Congress after a year to secure new authority.
McCain, as is his custom, found a way to express a purple bipartisan message in explaining the resolution. He is supporting the president’s operations in Libya to save lives and oppose Gadhafi, while also reaffirming the role of Congress as a necessary partner in committing the nation to “hostilities” by common-sense definition, such as what is occurring now in Libya.
President Obama is a brilliant lawyer and was advised on this issue by other brilliant attorneys.
But sometimes turning to the law to justify policy, even if the legal analysis is technically correct, isn’t the best choice.
In this case, I wish Obama had chosen politics over the law, and gone to Congress to obtain a supporting resolution for his intervention in Libya.
He would have gotten it. And in doing so, practicing good politics rather than good law would have served him, history, and the nation better.
Lanny Davis is the principal in the Washington D.C. law firm of Lanny J. Davis &Associates and is a partner with Josh Block at Davis-Block. He served as President Clinton’s special counsel in 1996-98 and as a member of President Bush’s Privacy and Civil Liberties Oversight Board in 2006-07. He is the author of “Scandal: How ‘Gotcha’ Politics Is Destroying America” (Palgrave Macmillan, 2006). He can be found on Facebook and Twitter (@LannyDavis).
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