Cyrenaica Conflict Causes Constitutional Crisis

(Cross-posted at the front page.)

The Speaker of the House yesterday sent a ‘warning letter’ to the President concerning the United States’ participation in NATO’s ongoing military adventure in Libya. The political fight now is about the War Powers Resolution, a law of debatable constitutionality and a consistent source of debate and concern. The core of the challenge is this:

Given the mission you have ordered to the U.S. Armed Forces with respect to Libya and the text of the War Powers Resolution, the House is left to conclude that you have made one of two determinations: either you have concluded the War Powers Resolution does not apply to the mission in Libya, or you have determined the War Powers Resolution is contrary to the Constitution.

So there you have it — the Constitutional crisis a-brewing. High stakes political poker. Let’s add some context here:

The War Powers Resolution was passed in 1973, during the war in Vietnam. You can read the whole thing at 50 U.S.C. sections 1541-1548, but in essence it boils down to this: the President can commit the military to armed action unilaterally. However, he must notify Congress of his having done so within 48 hours of that activity. The military may not continue active military activity for longer than 60 days, plus an additional 30 days in which to withdraw, without a declaration of war or its equivalent from Congress.

Here’s the timetable, as I see it, focusing on U.S. military, political, and diplomatic activity relating to the Libyan civil war:

• February 15: Peaceful protests against Gaddafi break out across parts of Libya.
• February 17: The “Day of Revolt,” held on the anniversary of protests five years previously against the Danish Mohammed cartoons. Gaddafi’s grip on power breaks as protests spread throughout most of Libya.
• February 24: The beginnings of the National Transitional Council are formed with a claim to a new government, to be based in Tripoli but temporarily headquartered in Benghazi.
• February 25: Most of Libya except for Tripoli and two other western cities under the control of rebel forces.
• February 26: President Obama and Secretary Clinton urge Gaddafi to resign and end the violence. NTC, not directly responding to Obama and Clinton, says that the “liberation” of Libya will be accomplished by the Libyan people themselves, not by foreign intervention.
• February 27: Secretary Clinton offers “any kind of assistance” to Libyans opposing Gaddafi, does not refer to National Transitional Council specifically. Gaddafi begins using airstrikes to fight rebels.
• February 28: US Navy begins positioning warships off the Libyan coast but no action is taken at this time. Secretary Clinton responds positively to suggestion by UK Prime Minister Cameron to impose a no-fly zone over Libya. US Government seizes thirty billion dollars in Libyan national assets.
• March 5: US, UK, France, and Australia jointly call for imposition of no-fly zone over Libyan airspace.
• March 7: Saudi Arabia, Kuwait, Bahrain, Qatar, United Arab Emirates, and Oman jointly call for no-fly zone.
• March 16: United Nations calls for immediate cease fire at a time that Loyalist forces seem to have recaptured much of the territory that had been under the control of the NTC only a week previously other than the immediate area around Benghazi.
• March 17: United Nations Security Council issues US and UK authored resolution 1973, imposing no-fly zone and authorizing member states “to take all necessary measures … to protect civilians and civilian populated areas.” China, Russia, Germany, Brazil, and India abstain; other 10 members of Security Council back the resolution.
• March 18: Gaddafi’s government announces that it will obey the March 16 ceasefire resolution; however, ground fighting continues.
• March 19: Operation Odyssey Dawn begins, as the US military begins shooting cruise missiles into Libya, targeting Loyalist air assets to prevent air strikes against Rebel forces. First shots are fired by French plains. Military activity by the United States remains daily thereafter through today.
• March 21: President Obama issues a formal notification to Congress of US involvement in military activity in the Libyan theater of operations, stating “I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action.”
• March 24: Formal command of naval operations transferred to NATO.
• March 25: Formal command of aerial operations transferred to NATO. A theater commander from Canada named to head the re-named “Operation Unified Protector,” proving that NATO comes up with even less imaginative code names for its military operations than does the US. US aircraft participate in daily or near-daily sorties across Libya.
• April 20: US (the Pentagon) announces it will give rebels $25 million in “non-lethal assistance” like uniforms, boots, rations, medical supplies, and radios.
• April 25: President Obama authorizes release of the $25 million in “non-lethal support” for rebel forces.
• May 5: Secretary Clinton requests authorization from Congress to unfreeze some of the seized $30 billion in Libyan assets to further fund rebels, who are fast running out of money and other supplies.
• May 11: Non-lethal support equipment arrives in Benghazi.
• May 23: Leaders of both parties in the U.S. Senate announce they have agreed on language to authorize continued US military activity in Libya.
• June 3: House of Representatives votes to rebuke President Obama for pursuit of ongoing military activity without consultation with Congress.
• June 4: UK and French begin using Apache gunships to support rebel ground operations, moving NATO a step closer to “boots on the ground.”
• June 9: US announces that it recognizes the National Transitory Council as the “legitimate interlocutor” of Libya, but stops short of extending formal recognition of the NTC as Libya’s legitimate government.
• June 14: Speaker Boehner sends President Obama “warning letter,” throwing down the globe on the War Powers Resolution.

Previously, trial balloons had been floated sugesting that because the command of the operation is under NATO, the President does not need to comply with the War Powers Resolution. Rather, he is bound to see to it that the US honors its treaty commitment to participate in NATO activities, and the ongoing military adventure in Libya is authorized by both NATO and the UN.In the wake of Speaker Boehner’s warning resolution, however, the tune sounds a little different as sung by a National Security Council spokesperson:

We are in the final stages of preparing extensive information for the House and Senate that will address a whole host of issues about our ongoing efforts in Libya, including those raised in the House resolution as well as our legal analysis with regard to the War Powers Resolution … Since March 1st, Administration witnesses have testified at over 10 hearings that included a substantial discussion of Libya and participated in over 30 Member or staff briefings, and we will continue to consult with our Congressional colleagues.

If the U.S. military activity is determined to have begun at the start of Operation Odyssey Dawn, then hostilities were commenced on March 19. Today is June 15, which is two days before the 90-day deadline by which the President must cease military activity without a declaration of war or its equivalent from Congress. Speaker Boehner is right that if the US continues military activity in Libya after Friday, the President will have violated the War Powers Resolution.

The President unquestionably attempted to comply with the War Powers Resolution on March 21. And he’s right to have abandoned the trial balloon that having swaddled our own activity in the vestments of NATO and UN resolutions, our forces can still be involved in ongoing military operations. The crisis is upon us at last – is the War Powers Resolution a constitutionally appropriate use of the exclusive power of Congress to declare war, or is it an unconstitutional infringement on the President’s prerogative as the commander in chief of the military?

I cannot help but think that the Speaker is in the right here. The Constitution gives to Congress, and not the President, the power to declare war. The President has the power to command and exercise day-to-day control over the military. That’s different than saying what it is that the military is going to be doing or attempting to achieve. If the allocation of the power to declare war to Congress means anything, it means that Congress can override the President’s decision to go to war. Otherwise, the President sending the troops into battle is effectively declaring war on his own, and that is not a power given to the President as a unilateral matter.

To be sure, it is facile to suggest that the White House and the Pentagon have not been in communication with Congress. Speaker Boehner should not base his actions on the lack of a formal letter requesting a declaration of war, similar to the notification of military activity which President Obama issued on March 21. But at the same time, he is right to note that while Congress has had all of the facts available to it, there has not been even an informal request for Congressional approval of what is going on in Libya.

The Framers envisioned a government wherein Congress would be the primary branch of government, the first among the three co-equal branches. In our modern era, we have seen a substantial delegation of rulemaking authority from Congress to the President. We have seen that the vagaries and pressures of the modern world require that the government respond quickly to threats and this means relying on the President and the military to act without immediately consulting Congress.

We have also seen that Congress can assemble, on its own, very quickly in response to events. America was struck by terrorists on September 11, 2011, and by September 14, 2011, Congress had met and written the USA PATRIOT Act. Whether you think that the PATRIOT Act was a good idea and an appropriate response to the shocking events of the previous few days, or an ill-conceived, hasty, and panicked response that should have been allowed to sunset out of our laws, it does prove that Congress can react to things very quickly when it needs to do so.

But at the end of the day, the Constitution does say that the power to declare war lies with Congress, not the President, and that means Congress has to get involved.

Both President Obama and Speaker Boehner can avoid this showdown. President Obama can avoid it by issuing a declaration that says something like this:

I request that the Congress of the United States consider issuing a formal resolution authorizing and endorsing the ongoing military activities in Libya. Pending Congress’ action on this issue, I will exercise my authority as commander-in-chief of the military to continue our military’s contribution to those activities in fulfillment of our obligations under the treaties entering the United States into the North Atlantic Treaty Organization, a law previously adopted by the Senate. Nevertheless I urge Congress to debate this issue and to, as soon as is practicable, authorize the ongoing use of military force in fulfillment of UN Resolution 1973 and NATO Operation Unified Protector. Because of the urgency of this situation, Mr. Speaker, I respectfully ask that you please bring this matter to a vote as soon as possible.

See, he could comply without saying he has to comply and at the same time claiming legal authority to continue operations on his own authority as commander-in-chief. He could also invoke a treaty, which would trump a statute like the War Powers Resolution. I personally don’t think that wins if the War Powers Resolution is constitutional, but it’s at least not a laughable argument.

Speaker Boehner could defuse the situation as well, by having someone introduce a declaration of war, or to use the contemporary phrase, an authorization for the use of military force, against the Loyalist government in Libya. It’s not like Congress doesn’t know what’s going on and can’t act on its own. Boehner doesn’t have to wait for Obama to act before he takes action on the issue himself. However, Boehner at least seems to want a confrontation, to turn this into a political victory and an enshrinement of the tug-of-war between the two political branches of government. This is unfortunate, and it will be unpleasant, but it is probably necessary.

I say that, despite the fact that I think the real problem here is that we dithered for too long before getting involved in Libya at all. If we were going to do some good, we should have intervened back when the rebels had the upper hand. Instead, we f—ed around for weeks while Gaddafi got his act together and re-took most of the country. Until and unless we get ground forces in there to fight side by side with the rebels, it’s a desultory battle for villages, and if it turns into a war of attrition, I’ll bet that works out in Gaddafi’s favor. Given where we are, though, we need to at least get our own legal house in order and reach some kind of a political consensus about what we’re going to do. That’s why this confrontation is necessary — we need to have that debate, reach that consensus, and act, because we can’t stay in limbo this way forever.

It’s politically ironic that it happens this way. The War Powers Resolution was passed by a Democratic Congress to rein in a Republican President. Now it is being invoked by a Repubilcan in Congress to rein in a Democratic President.

Stay tuned.