House Speaker John Boehner is accusing the White House of deciding to “conceal” a Justice Department opinion that contradicts President Barack Obama’s argument that the U.S. mission in Libya doesn’t need congressional authorization to continue.
The Ohio Republican released a statement last night after Obama declined in a letter to Boehner to address the Justice Department’s Office of Legal Counsel’s views on whether the War Powers Resolution of 1973 applies to the mission. Obama takes the position it doesn’t apply because the U.S. is serving a support role to the NATO-led mission that does not meet the definition of “hostilities” that requires congressional approval.
White House Press Secretary Jay Carney earlier said there had been internal debate among advisers to the president as to the interpretation of the statute. The New York Times reported late yesterday that Obama had overruled the views of Pentagon General Counsel Jeh Johnson and the acting head of the Justice Department’s Office of Legal Counsel, Caroline Krass, that the resolution did apply. The Times reported that White House Counsel Bob Bauer, State Department legal adviser Harold Koh and others countered that it didn’t apply and that Obama sided with the latter camp.
There was a “full airing of views within the administration and a robust process” that led Obama to his decision that the war powers law didn’t apply, White House spokesman Eric Schultz said in an e-mailed response to questions. He declined to release the Justice Department’s position or discuss individual attorneys’ advice.
Schultz said the resolution has been “subject to intense debate” since its enactment in 1973 that that “it should come as no surprise that there would be some disagreements” inside the administration as to how the law applied.
Justice Department spokesman Matthew Miller declined to confirm details of the OLC position. “Our views were heard, as were other views, and the president then made the decision as was appropriate for him to do,” he said in an e-mail.
The U.S. mission in Libya is pitting Boehner and Obama from opposite sides of the argument over when the War Powers Resolution applies. Boehner once called the resolution “constitutionally suspect,” and Obama, when he was a senator, argued that Congress must have the “backbone” to stand up to presidents when they want to send troops into battle.
The standoff has escalated since the administration produced its 32-page report on June 15 laying out the president’s rationale for committing U.S. forces to an air campaign with NATO allies against Muammar Qaddafi’s troops without congressional approval.
Boehner has said the House will look at options to force Obama’s hand, including cutting off funding for the operation or blocking unrelated White House priorities. Democratic Senator Richard Durbin of Illinois, a close ally of Obama, said Congress should go ahead and give its support for military operations against Qaddafi’s regime.
“The right thing to do is for Congress to approve of the president’s action, make it official,” Durbin said. “Whether it’s necessary, if it includes reference to it and makes it clear that we are acting consistent with the War Powers Act, that’s what I’m looking for.”
The War Powers Resolution, passed in 1973 in reaction to U.S. involvement in Vietnam, has been at the center of struggles between presidents of both parties and Congress ever since.
Supporters and Critics
Even supporters of Obama and U.S. action against Qaddafi were critical of the administration’s argument that the president doesn’t need congressional authorization. In its report to Congress, the administration said the resolution doesn’t apply to the Libya mission because the U.S. is primarily in a support role and isn’t engaged in hostilities as defined in the law.
Boehner rejected the administration’s reasoning, saying in his statement last night that “the White House’s suggestion that there are no ‘hostilities’ taking place in Libya defies rational thought. Now, its decision to conceal the opinion of the OLC raises even more concerns.”
“Over the coming week, our members will review all options available to hold the administration to account,” Boehner said.
Still, the White House report repeated that the administration would welcome a resolution that a bipartisan group of senators has drafted to “confirm that both branches are united in their commitment to supporting the aspirations of the Libyan people for political reform and self-government.”
‘Hard to Swallow’
Senator John McCain, an Arizona Republican and one of the sponsors of the resolution, said he found Obama’s legal argument “hard to swallow.” Senator Richard Lugar of Indiana, the top Republican on the Senate Foreign Relations Committee, called Obama’s stance “both legally dubious and unwise.”
Representative Jim Clyburn, a South Carolina Democrat, said Boehner “has a legitimate point.”
“It’s all about separation of powers,” Clyburn said.
Boehner’s objections are joined by antiwar Democrats such as Ohio Representative Dennis Kucinich, who with nine other lawmakers has filed a lawsuit challenging the president’s authority to carry out the mission.
Kucinich said yesterday he’ll move to end funds for continued U.S. military support for the Libya operation when the House takes up on the annual defense-appropriations measure next week.
“In a direct challenge to Congress, the administration is continuing the war despite its inability to provide a constitutional or legal justification for bypassing” lawmakers, Kucinich said in a statement.
An earlier Kucinich amendment to order an end to the U.S. role in the Libya mission in 15 days was defeated on June 3, though it drew support from 87 Republicans and 61 Democrats.
McCain warned his fellow Republicans against trying to block the mission, saying they need to ask themselves if they want to appear to take sides with Qaddafi against Obama.
“The administration may assert that we are not engaged in hostilities in Libya, but the Senate should go on record as authorizing these operations,” he said in the text of a speech delivered on the Senate floor June 16.
Obama, 49, ordered military action against Qaddafi’s regime in March, saying he was acting to keep a “tyrant” from killing civilians protesting his rule. Since then the mission’s lead has been transferred to the North Atlantic Treaty Organization.
The conflict in Libya, which has Africa’s largest proven oil reserves, followed uprisings elsewhere in North Africa and the Middle East that toppled leaders in Egypt and Tunisia.
Violence in the region has helped push up oil prices, and futures are up 22 percent from a year ago. Crude oil for July delivery dropped $1.94 to $93.01 a barrel.
Obama, a Democrat, and Boehner have argued opposite sides of the issue in the past.
Boehner, 61, in 1999 spoke against invoking the War Powers Resolution to constrain then-President Bill Clinton’s decision to initiate a NATO air campaign in Kosovo. Boehner said it would tie the hands of future presidents in responding to crises.
Obama’s remarks were made in a 2007 speech at DePaul University in Chicago. An opponent of the Iraq war, Obama said the War Powers Resolution was written to make sure Congress wouldn’t be “duped” into a war.
Scholars such as Mark Rozell, a public policy professor and expert on presidential powers at George Mason University in Arlington, Virginia, said Obama may be on thin legal ground now.
Rozell described Obama’s rationale in the White House report as “clever, legalistic language” that relies on “bad precedents” over the past four decades in which Congress ultimately didn’t punish presidents for acting without their consent. “The president overreached his constitutional authority,” he said.
Louis Fisher, who worked for four decades as a specialist on separation of powers and constitutional law with the Library of Congress, said Obama miscalculated.
“If it had been a week or two, it would be OK,” but as the conflict stretches into months, “now it’s not OK. I think he’s been giving the back of his hand to Congress.”