Advancing a Free Society

Libya and the War Powers Act

Friday, May 13, 2011

The Obama Administration is edging up on the 60 day limit beyond which no President of the United States can legally keep American military forces involved in combat without approval of the Congress.  The constraint was established by Congress in the 1973 War Powers Act, but never before now accepted by Presidents.  The Obama Administration has indicated it will comply with the War Powers Act, but only in form, not substance.

The Constitution is quite clear that “the Congress shall have power...to provide for the common defense,” and even enumerates specific responsibilities that lie with the Congress rather than the Executive:

  • To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
  • To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
  • To provide and maintain a Navy;
  • To make Rules for the Government and Regulation of the land and naval Forces;
  • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
  • To provide for organizing, arming, and disciplining, the Militia...

It’s a very wide latitude of national security responsibility reserved for the Congress.  In addition, Congress has always had a direct means for compelling Presidential compliance with their wishes: the ability to withhold funding for wars.  The War Powers Act was designed to reassert Congress’ co-equal role in the conduct of our nation’s wars, a role that had diminished dramatically by President Truman taking the country to war in Korea without a declaration of war by the Congress and President Johnson and Nixon’s prosecution of the war in Vietnam.

The War Powers Act requires the President to withdraw U.S. forces from military operations after 60 days unless the Congress has authorized their use.  Presidents have always asserted it to be unconstitutional, infringing as it does on the Commander in Chief’s responsibilities.  Yet no American President has been confident enough in the case to challenge the Act in court, so the authorities remain in limbo, both branches of government asserting the primacy of theirs.

Presidents have generally not had to face the War Powers deadline, because either fighting was already over or Congress provided authorization.  During the 1999 Kosovo air war, President Clinton gave some ground, acknowledging the 60 day deadline but arguing that Congress had implicitly provided its support for the war by authorizing funds for its prosecution.

President Obama hits the 60 day mark on May 20th for forces engaged in the air war against Moammar Ghaddafi in Libya. Deputy Secretary of State Jim Steinberg testified yesterday before the Senate Foreign Relations Committee that President Obama is committed “to act consistently with the War Powers Resolution.”  It is especially remarkable for an Administration that limited its consultation with Congress to a telephone call before engaging in the Libya campaign -- and which insisted it did not require and would not seek Congressional approval for combat operations in Libya -- to now suggest it would grant Congress the ability to turn off operations.

Two possibilities suggest themselves for this latest about face in Obama Administration thinking.  First, that the Administration is looking for a way out of the war in Libya and would like Congress to share in the responsibility of writing off a military engagement undertaken without thinking through the costs (reported by Secretary Gates yesterday at $750 million) and consequences.

The second possibility is that the Administration has resigned itself to a long slog in Libya and has a new appreciation for the value of Congressional support.  The Administration is reportedly considering a temporary halt to U.S. operations, in order to “reset” the 60 day clock, or confining our military involvement to the collection and provision of intelligence -- both meaningless pro forma compliance.  As the recent New Yorker profile said of the President, “Obama’s instinct was to try to have it both ways.”

Congress should not accept those as adequate ways to meet the intent of the law.  If the President wants to bring the Executive Branch of our government into compliance with the War Powers Act, he should submit his policy to Congress for approval and get an authorization for war.

(photo credit: Barack Obama)