Once upon a time in America, if Congress didn't want to exercise their formal war-declaring powers, granted to them under Article 1, Section 8 of the Constitution, then you didn't go to war. "Take it on the arches, Mr. President," they would say, adding, "maybe just use the Lend-Lease Act, or something." But in the ensuing years, as your congressmembers have gone from being a bicameral body primarily concerned with governing to a bicameral body primarily concerned with getting reelected to the bicameral body, we've seen a withdrawal from this sense of responsibility. So now, Congress mainly just rubber-stamps whatever military intervention the White House wants to participate. (Years later, they panic because they can't figure out how we came to have all these deficits.)
But now, House Speaker John Boehner (R-Ohio) is suddenly very interested in bringing the Obama White House into compliance with the War Powers Act over our intervention in Libya. And he's sent a sternly worded letter to President Barack Obama, seeking redress for his concerns over the War Powers Resolution:
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.
Passed in 1973, the War Powers Resolution is basically Congress' weak attempt to recheck the executive branch's power to mount military interventions after it became clear that the executive branch no longer cared about seeking Congress' permission to declare war. The law more or less allows Congress to "check" the executive branch by allowing them to say, "Hey, it looks like you're doing some war stuff over there! Could you maybe keep us in the loop?" It has essentially reduced oversight over war to a matter that simply depends on the timely delivery of memoranda. But the executive branch has basically put the legislature in a bind -- where it was once difficult for the president to start a war, the pressure has been shifted to Congress: "Go ahead and try to undeclare this war." As Dahlia Lithwick points out, "presidents of both parties have declared it unconstitutional and Congress has refused to force the issue."
Congress has typically opted out of doing much to provide oversight over the executive branch's warmaking. And the White House's belief in their free reign doesn't come from nothing. Back on May 26, when the Libya mission was in full swing, an attempt was made by Reps. Barbara Lee (D-Calif.) and Justin Amash (R-Mich.) to remove a section from the National Defense Authorization Act of FY 2012 that "would vastly expand the power of the President to engage in war." President Obama issued a veto threat, and the measure failed, with 20 Democrats crossing over to oppose its removal.
So John Boehner, at first blush, looks as if he's trying to break some new ground. Though he wouldn't be able to do so if it wasn't for the fact that opposition to Libya comes drizzled with bipartisanship sauce. Liberals dislike the Libya campaign because they feel it creates a standard for intervention that cannot be consistently applied -- how can we save people in Libya and not in Syria or Bahrain. Conservatives don't like this whole "leading from behind" thing where we're taking a back seat to France. To everyone's credit, there seems to be a broad dissatisfaction over the mission, because it's just strategically weird. (And its heavy-handedness is a big break with the Obama administration's "light touch" approach to the uprisings in the Middle East.)
Of course, Boehner's effort is awfully strange. For one thing, he's asserted his War Powers authority a month too late. His letter begins, "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." As Adam Serwer points out, this is confused:
There's only one problem: The time limit in the WPA isn't 90 days. It's 60 days. As former Bush-era head of the Office of Legal Counsel Jack Goldsmith writes, the extra 30 days are permitted only if the president "determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces."
Serwer goes on to point out that this doesn't "let the administration off the hook."
The president hasn't taken the necessary action to receive the extra 30 days -- in fact, the administration hasn't even released a rationale for why it is in compliance with the WPA despite not having received certification from Congress.
So, what was Boehner doing for a month when he could have been dutifully intervening? Gently weeping? Well as it turns out, two weeks ago, Boehner was telling reporters that the White House was totally in compliance with the War Powers Act:
The Ohio Republican told reporters on Wednesday that Obama was "technically" in compliance with the War Powers Act, despite criticism from the left and right over U.S. involvement in the Libya campaign.
"There are a lot of questions that remain out there, and frankly I think members on both sides of the aisle are looking for answers about this, and they're looking for some clarity," Boehner said. "Legally, they've met their requirements [under] the War Powers Act."
Why did he say that then, and say something different now? Well, it was because Rep. Dennis Kucinich (D-Ohio) was attempting to surgically implant a spine into Congress' backside. Andrew Rudalevige explains the tug-of-war that ensued:
You would not expect the House leadership to allow pretty much anything by Dennis Kucinich to come to an actual vote, but such resolutions have privileged status under the text of the War Powers Resolution. While there is still some time left before a vote is required by that law, the House is about to recess for a week. Thus today's the day. Actually Wednesday was going to be the day, but as John Bresnahan of Politico notes, "the proceedings were postponed after Republican leaders became concerned it would pass."
Instead, Speaker John Boehner put forward a competing resolution which will allow lawmakers to scold the president without (they hope) either taking responsibility for the use of force or for ceasing it. Members will get to surrender, without giving themselves (or rather their position) away, the better for later blame avoidance (or, if things go better, credit claiming.)
The resolution notes -- without activating the WPR or even mentioning it -- that "the President has not sought, and Congress has not provided, authorization for the introduction or continued involvement of the United States Armed Forces in Libya" and that Obama "has failed to provide Congress with a compelling rationale based upon United States national security interests" for the NATO intervention there. It requires a 21-point report (starting with Obama's rationale for not requesting Congressional authorization) and, more interestingly, copies of State, Defense and Justice materials relating to the decision to commit troops.
So, the President is asked to justify his actions, but the actions themselves are at least tacitly endorsed as a result.
And so yesterday, the White House sent over a letter of their own, responding to Boehner. And it's sort of amazing!
The two senior administration lawyers contended that American forces had not been in "hostilities" at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to primarily a supporting role -- providing refueling and surveillance to allied warplanes, although remotely piloted drones operated by the United States periodically fire missiles, too.
They argued that United States forces are at little risk because there are no troops on the ground and Libyan forces are unable to exchange fire with them meaningfully. And they said the military mission was constrained by a United Nations Security Council resolution, which authorized air power for the purpose of defending civilians.
"We are not saying the president can take the country into war on his own," said Mr. Koh, a former Yale Law School dean and outspoken critic of the Bush administration's expansive theories of executive power. "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."
Essentially, if forces from the United States aren't actually dying, it's not a war, never mind the fact that U.S. forces are, nevertheless, actively engaged in an attempt to kill people. So that's a neat new idea.
Boehner responded to this through a spokesperson: "We will review the information that was provided today, but hope and expect that this will serve as the beginning, not the end, of the President's explanation for continued American operations in Libya." So, there you have it: There was a timely delivery of a memorandum, and Boehner hopes that there will be the timely delivery of future memoranda. This is becoming a Vaclav Havel play!
All is not lost, however. Yesterday, George Washington University law professor Jonathan Turley, acting on behalf of 10 members of Congress (six Republicans and four Democrats, including Rep. Kucinich), filed suit in federal court, seeking to stop the War in Libya. And bless them, they are citing the all-but-forgotten Article I, Section 8 of the Constitution.
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