Obama, Libya and Presidential war powers

Bruce Ackerman and Oona Hathaway write about a very serious issue in Obama's Illegal War Foreign Policy 06/01/2011. They make a persuasive case that the Obama Administration is currently waging war illegally in Libya. This is a big deal, even though Congress so far has been greeting it with a collective shrug of the shoulders.

As they explain, there is a War Powers Act that regulates the President's ability to conduct hostilities without Congressional approval. It's there for a good reason. The Act states that if 60 days passes without Congress authorizing a military campaign being conducted by the Executive, the President is obliged to terminate the hostilities within 30 days. The 60 days expired on May 20, on which date the Administration requested an authorization from Congress, which Congress has still not provided. That means President Obama is currently legally obligated to terminate all American participation in hostilities in Libya by June 29.

Since we're talking about law, one could plausibly argue that even though the war is illegal under the Constitution and the War Powers Act in that it hasn't yet been legally authorized, the Administration hasn't yet actually violated the Act because they have until June 29 to terminate hostilities or get Congressional approval.

Now, our Pod Pundits don't care about all this. With rare exceptions, they're completely on board with the notion that the US should be perpetually at war. And with the national security state and expansive Presidential war powers. We're unlikely to see any hard-hitting exposes on CBS or CNN of the Administration fighting without a legal basis in Libya.


The Beltway Village types are right to shrug it off, in one sense. Congress has to enforce the War Powers Act themselves. As Ackerman and Hathaway write, "Unlike with many other areas of law, the courts can't be counted on to translate abstract principles into concrete rules. So far as war-making is concerned, they have left it to the political branches to work the matter out -- which is precisely the purpose of the War Powers Resolution."

And Congress is not going to enforce it. They will give the President the authority to continue the Libya War. (See David Dayen, Boehner, GOP Crafts Legislation to Allow Continuation of US Mission in Libya FDL News 06/02/2011) As Glenn Greenwald (The war in Libya growing more illegal by the day Salon 06/02/2011) asks sarcastically, "Can we hear more now about how the two parties are so radically different that bipartisan cooperation is impossible? The Emperor has decreed that we will fight this war, and thus we will -- that seems to be the prevailing mindset."

It's the prevailing mindset that needs to change. US participation in this war was justified from the start on the dubious premise that a mass massacre would likely take place if we didn't enter the then-beginning civil war as a partisan of the anti-government side, even though it's far from clear even now just what kind of "free Libya" forces we are backing. US and NATO intervention virtually guaranteed a prolongation of armed hostilities in Libya, with lots of deaths involved and more to come. The fact that intervention added tremendously to pressure to prolong the conflict wouldn't necessarily be bad in itself. But it is bad that Congress has effectively buried their collective heads in the sand and refuse to exert any restraints on the Executive in this, even to demand accountability and information.

Perpetual war is bad. The President shouldn't be trying to maintain such a condition. Congress shouldn't be allowing it.

Tags: libya war, war powers, war powers act

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