Cyrenaica Conflict Causes Constitutional Crisis


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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85 Responses

  1. Avatar Kyle says:

    I can’t help but think of what a terrible precedent this action sets, I mean the neocons are watching for goodness sake. What will they think?

    I mean it’s a little sad to look back upon the March to Iraq II and think well at least the President made a case for war and asked Congress for approval and funding. HOW THINGS HAVE CHANGED!?!?! It’s such a sad, low bar.

    I tend to take an incentive based view of the world and this is the wrong kind of John Foster Dullesism in action. It encourages opponents of bad regimes to escalate situations beyond their capabilities in the hope the “international or more accurately North Atlantic” community will get involved and liberate them. Some will say this is a good thing, perhaps in the long run it will be. However, it also creates an incentive for motivated North Atlantic-types to encourage such uprisings against a dictator du jour. Finally, it means those governments at risk for toppling to angry unemployed mobs – except California – will find less comfort in an alliance with the United States and Europe and more comfort in distracting them with extremist views and/or the acquisition of nuclear weapons.

    Not to mention this kind of legal brinksmanship will likely invite more delegation of responsibility from Congress and a more militarily assertive executive branch.Report

  2. Avatar Kolohe says:

    “Until and unless we get ground forces in there to fight side by side with the rebels,”

    We (meaning the US or NATO) could simply provide at lot more close in air support of rebel forces and theater level aerial bombardment of Gaddafi’s forces and infrastructure, which would break any stalemate, and I would even say guarantee rebel military victory. But, for one, that more visibly exceeds the UN mandate, for two, that risks killing *a lot* more civilians, and three, doesn’t do anything to prevent or mitigate Gaddafi loyalists from going to ground and starting an insurgency of their own once the rebels declare victory. And recent history indicates that an accelerated air campaign would probably accelerate that third thing.Report

  3. Avatar Pat Cahalan says:

    > I personally don’t think that wins if the War Powers
    > Resolution is constitutional, but it’s at least not a
    > laughable argument.

    Howforso not? Treaties are legally binding, that’s what George famously urged the country not to sign too many of them in his farewell address.

    If we’re legally bound to assist NATO (and I’m not familiar enough with the treaty to state with any sort of authority what it says, so take that into account), and NATO engages in military activity, we’ve already ceded to NATO a binding agreement; we essentially allow them to declare war on our behalf.

    If we don’t cede them that ability… if that’s not what the NATO treaty says, then I’m really not sure what the hell good a military cooperative treaty is worth. Why would anyone ever agree to be bound to assist us in military matters while simultaneously agreeing that if they call upon us, our Congress can decide *not* to declare war and cut out our obligations under treaty?

    I can see lots of incomplete understandings on my part, so I may be wildly off-base.Report

    • Avatar Burt Likko in reply to Pat Cahalan says:

      As I understand it, the NATO treaty is one of mutual defense; Libya has not invaded or threatened any NATO member state, so participation in a NATO operation is voluntary on the part of the various treaty members. So if we wanted to opt out of NATO operations in Libya, we could do so without breaking our treaty obligations. Not every NATO member state is participating in NATO operations in Afghanistan, for instance.

      Better-informed commenters than I should chime in here.Report

      • Avatar BlaiseP in reply to Burt Likko says:

        After the Berlin disco bombing and Lockerbie, there were open warrants on Libya. Gadhafi settled up with the European victims but not with the American victims.Report

      • Avatar kyle in reply to Burt Likko says:

        My understanding is that this is basically correct. The signatories have agreed to mutual assistance in case of attack but have no obligations with respect to offensive actions ala Suez, Vietnam, etc.

        As for blaise’s point about victim settlements, even if one were to admit the claims, at best we’d be talking about payments or asset forfeiture, not regime change or bombing assets.Report

  4. Avatar BlaiseP says:

    Seems to me it’s all over but the crying. Congress ceded so much power to the Executive over the last few decades. Now they want some of that power back, fine, let them veto a defense spending bill. Boehner is a petty jackass and so is that old snapping turtle Mitch McConnell. They gave Obama 600 billion for defense and he’s not exactly asking for more now. If ever there was a tale told by an idiot, full of sound and fury, signifying nothing, it’s the current farts of outrage from the GOP.Report

    • Avatar Jaybird in reply to BlaiseP says:

      I miss the anti-war protests.

      Whatever happened to those?Report

      • Avatar dexter in reply to Jaybird says:

        Americans finally realized the futility of them.Report

      • Avatar Scott in reply to Jaybird says:

        The anti war protests dried up after Barry became president. People like Elias give Barry the ok to attack Libya given that it is for the kids and not for oil.Report

        • Avatar Plinko in reply to Scott says:

          Maybe where you live. The same group of 6-8 people hold signs calling for an end to the wars on the same busy street corner across from my office every Friday as they have since at least 2005.Report

        • Avatar Pat Cahalan in reply to Scott says:

          Given that our political protest maps into two behaviors: principled people actually arguing that something is wrong (see Plinko’s 6), and Team Players arguing that the Other Team is doing something wrong (see “most political ‘protest’).

          Of course, it’s hard for Team Players to credibly criticize the Other Team for taking pretty much the same exact stance that they took when they were in the commander’s seat.

          Sure, you can criticize some of the Left for not being actual Doves, Scott. But the anti-war protests aren’t around because the Team Players on the Right feel outright foolish for going out and carrying signs saying “No Blood For Oil”.

          What signs would they carry? “It’s Only Okay If Our Guy is President!”?Report

    • Avatar Anderson in reply to BlaiseP says:

      “that old snapping turtle Mitch McConnell”

      This imagery made me laugh out loud.Report

    • Avatar Scott in reply to BlaiseP says:


      It is your old song about those bad Republicans. Do you have another tune? I guess expecting Barry to obey the law is too much to ask?Report

      • Avatar dexter in reply to Scott says:

        Scott, If possible I would like some links to your complaining when that brain dead bush and his giant dick decided to stop looking for OBL so America could spend a couple trillion dollars looking for non-exist weapons in Iraq.Report

        • Avatar Scott in reply to dexter says:

          It which fantsay land did Bush gave up looking for OBL?Report

          • Avatar dexter in reply to Scott says:

            Scott, “I have no idea where Bin Laden is. I have idea and really don’t care. It’s not our piority.” from an old Buzzflash site 11/13/02. Your ideas don’t bother me near as much as your tone.
            Simon K and I had over a thousand words of disagreement last week without once calling each other stupid or living in a fantasy land.Report

            • Avatar tom van dyke in reply to dexter says:

              Another successful hijacking. Libya has zip nada doodah to do with Bush. This is President Obama’s baby.Report

              • Avatar Jaybird in reply to tom van dyke says:

                The idea that we can rebuild the Middle East into a set of Democracies is very much Bush’s Baby.

                The idea that we *should* also is one of his.Report

              • Avatar tom van dyke in reply to Jaybird says:

                Nice try, JB. Libya is Obama’s baby. Further, so is Egypt. I’m with Lee Smith [below]. I do not think the previous administration would have been so precipitous, even knee-jerk, in support of the street protests.

                [And even if it had been, it has. Nothing. To. Do. With. Obama and the current crisis. Which is. His baby. Not Bush’s.]


                “These scenarios are a result of Mubarak’s having been toppled in the way he was. Had he been allowed to leave after elections and overseeing a transition, as he promised, things might look very different now. The Obama administration could’ve held him to his promise, and pocketed that as a victory for US diplomacy, since this is precisely what the State Department had sought from Mubarak for some time—a successor named to replace him, and a timeline for his exit.

                Instead, the White House sided with the protesters and demanded he step down; now the revolutionaries have a veto over the political system by virtue of the fact that they can simply go to the street and cause mayhem. So instead of a transition to democracy, we have the beginnings of a tyranny of a minority, a naïve minority at that which does not understand how its interests may eventually come to heads with the country’s more powerful forces, its armed forces.”Report

              • Avatar Plinko in reply to tom van dyke says:

                Obama certainly should be able to make his own decisions on this. He had the opportunity to do right and he didn’t.
                That said, what you state here is absolutely the bizarro world version of things.

                The right thing to do was support the protestors in Egypt and Libya and anywhere. If there’s one thing the USA ought to be able to do is say publicly to the world that citizens of all nations have every right to air grievances and to call for their basic human rights to be respected.
                The wrong thing to do was to start bombing runs in Libya when we didn’t like how the entrenched powers handled those protests.

                The idea that we should be telling the masses to enjoy their gruel and suck up to their dictators is, frankly, sick.Report

              • Avatar tom van dyke in reply to Plinko says:

                Not atall, “Plinko.” By demanding Mubarak abdicate immediately instead of supervise an orderly transition, BHO left a lot more jokers in the deck. It may turn out OK regardless, but that’s the reality, and you calling it bizarro world does not make it so, nor is that any principled counterargument.

                Egypt rather is Bizarro World, as is pretty much the rest of this planet. And creating an interregnum in Egypt instead of a transition was imprudent, IMO, and that of many others.

                And it has nothing to do with Bush, my primary objection.Report

      • Avatar BlaiseP in reply to Scott says:

        Oh there are quite a few good Republicans I like. F’rinstance, I’ve always admired Orrin Hatch. Don’t agree with much he says, but he’s an honorable man. I like Lindsey Graham for many of the same reasons. Wish we had a dozen like ’em, to keep the Democrats honest. Every good politician needs another one to keep him in the game, and it’s a great pity there aren’t more Republicans worth more than a bucket of warm bull piss in the Senate.Report

        • Avatar Wolfgang in Pauper's Grave in reply to BlaiseP says:

          The only Democrat I’ve ever liked and listened to was Patrick Moynihan. McGovern seemed like a very decent, good man, who has been through hell after his daughter committed suicide.

          Beyond that, I’m at a complete loss.

          It’s not that I have any strong, passionate animus towards Liberals and Democrats, they just bore me to hell and death. Insufferable comes immediately to mind. So does unendurable. So does that character in the movie, “Airplane” who drives everyone to suicide moments after he opens his mouth. Yeah, I could imagine Libs having that kind of effect.Report

          • Avatar BlaiseP in reply to Wolfgang in Pauper's Grave says:

            Once I thought as you do about Democrats. Y’know who changed my mind about the Democrats? Paul Simon, remember him? He was one of those fiscally conservative Democrats we used to have back in the day. I used to write him letters and he’d write me back, I have at least a dozen letters from his office.

            At heart, I think I’m still the old Liberal Republican I used to be. Reagan once said he didn’t leave the Democratic Party, it left him. That’s how I feel about the GOP. After the GOP welcomed the filthy racist Dixiecrat rats with open arms, I really wanted to leave the party but I held my nose and voted for Nixon anyway. We all know how that turned out. Remember when Nixon put the White House guards in those absurd uniforms? I almost vomited. Nixon was such a disgusting bastard. When the Cambodia invasion went down, everyone in uniform was completely horrified. We knew it would lead to a very bad end and it did. Then came Watergate and nobody I knew was surprised…..

            I actually voted for Reagan the first time. Carter really was a decent man and I wanted to like him but he’d micromanaged and mismanaged the country and surrounded himself with idiots. Reagan horrified me. When the GOP evicted its Liberals, and remember, back then there really were Liberals in the GOP, who were actually decent people, well, that was the last straw.

            I had a horrible fight with my father over changing parties. Didn’t speak to him for years thereafter. Saddest part of my life.Report

          • Avatar BlaiseP in reply to Wolfgang in Pauper's Grave says:

            Another Republican I’ve always liked is Bush41 the Wiser. A real mensch. The best part of Dubyah ran down his momma’s leg. He wasn’t a patch on his Dad’s britches. How such a decent, reasonable man could give rise to such a vicious, petty little man-child I’ll never know. It really is perverse, because I like his other son, Jeb, once the governor of Florida.

            Bush41 was a man of duty and honor. We’re pretty sure he got some doo-doo on his heel in Iran-Contra, but that’s mostly Reagan’s doing. He was just what the CIA needed at the time he was in charge over there.Report

      • Avatar tom van dyke in reply to Scott says:

        Yeah, this generic snark and slander on the GOP uglies up this blog bigtime. And when the colors are reversed, too. Boring.Report

        • Avatar BlaiseP in reply to tom van dyke says:

          Fact is, this Constitutional Crisis is nothing but a bluff. Going back to Magna Carta and the barons, it’s a question of money. The GOP has already passed a defense budget. There’s nothing more they can do to Obama. It is, as I have said, so much outraged farting, and has nothing to do with generic snark or slander.Report

          • Avatar Scott in reply to BlaiseP says:


            So the War Powers Act is part of the GOP’s imagination and not the Constitution? It must be a good delusional given some Dems are sharing it.Report

            • Avatar BlaiseP in reply to Scott says:

              Obama’s made it clear enough: this is a NATO operation. There are no US boots on the ground. And yes, for all practical purposes, the War Powers Act is a figment of the GOP’s imagination.

              I just love the idea of the GOP sticking up for Gadhafi. And that payaso, Kucinich, too.Report

              • Avatar Scott in reply to BlaiseP says:


                That explains it all. I must have missed the NATO operation and the no ground troops exclusion from the WPA when I was rereading it last week.Report

              • Avatar BlaiseP in reply to Scott says:

                Go on sticking up for Gadhafi. Even St. Ronnie dropped a few bombs on his scruffy ass, not that you’d remember those days.Report

              • Avatar Scott in reply to BlaiseP says:


                You mistake sticking up for federal law as sticking for up Gadhafi. I remember St. Ronnie bombing him fondly. I also remember learning about the WPA in law school but I guess Barry missed that day or wasn’t paying attention.Report

              • Avatar BlaiseP in reply to Scott says:

                Bullshit. Yes, you are sticking up for Gadhafi, preferring his wickedness to Obama’s.

                This is a naked attempt to attack a sitting president, exactly along the same lines Andrew Johnson was attacked.

                Those whom the gods would destroy they answer their prayers. Start impeachment proceedings right away, that this wicked Congress may have its day and be given its richly deserved beating.Report

              • Avatar Scott in reply to Scott says:


                The “wickedness” starts at home with folks like you giving Barry a pass on obeying federal law.Report

              • Avatar BlaiseP in reply to Scott says:

                And what shall we make of people like you, using Gadhafi as a battering ram to attack Obama? There is no other possible conclusion: you actually prefer Gadhafi to Obama.Report

              • Avatar Scott in reply to Scott says:


                Barry is the one ignoring federal law and giving Republicans the battering ram to use on him. Why does Barry think he is above federal law?Report

              • Avatar BlaiseP in reply to Scott says:

                Gadhafi is a manifestly wicked man on whose orders American soldiers were murdered and airliners blown up over Lockerbie Scotland. How dare you tell me of who is ignoring federal laws when American blood is on this man’s hands? If the GOP had an ounce of decency in them, and they do not, they would have backed the overthrow of Gadhafi. This they will not do. Coprophagous swine, all of them.Report

              • Avatar Scott in reply to Scott says:


                The blood of many Americans is on the hands of many dictators still in power around the world, so what makes QDaffy any worse or more deserving of breaking federal law?Report

              • Avatar BlaiseP in reply to Scott says:

                That’s just pitiful. Reduced to tu-quoque and now shinnying up the palm tree to escape the tiger, you may screech and holler at your leisure. It remains true as ever: you prefer Gadhafi to Obama.Report

              • Avatar BlaiseP in reply to Scott says:

                P.S. … and all the other dictators, too.Report

              • Avatar Jaybird in reply to Scott says:

                “Objectively pro-Gadhafi”.

                That’s the term we used for those who opposed the operation in Iraq.

                The way you make this argument work is that you weigh the absolute best-case, pie-in-the-sky, scenario of intervention against the status quo.

                This is because if you weigh the last fifteen or sixteen times we’ve done this against the status quo, you get to a different answer.Report

              • Avatar Scott in reply to Scott says:


                And you can stick with your phony righteous indignation. What a tear jerker!Report

              • Avatar Burt Likko in reply to Scott says:

                Okay, are we done with this now, fellas? Flame wars are good for the comments count and all, but this isn’t helping advance the discussion much.Report

              • Avatar Robert Cheeks in reply to Scott says:

                …did Barry go to law school?Report

          • Avatar tom van dyke in reply to BlaiseP says:

            Or maybe Obama’s just wrong on this. Sometimes everything’s not just partisanship and opinion. That’s where the slander and snark comes in.

            And it’s fucking boring, Blaise.Report

            • Avatar BlaiseP in reply to tom van dyke says:

              Yes, it’s a wonderful day in the Land o’ GOP. Proppin’ up that maniac Gadhafi for political points. I’ll tell you what’s fucking boring Tom, it’s the GOP’s taste for swill: there’s no lie they won’t tell, no vicious little dictator they won’t back, no alliance they won’t abandon to score points in their pointless little vendettas. I’ve been witness to this shit for a very long time, going back to LBJ and Richard Nixon.Report

        • You know, this is why when I write about stuff like this, I try to use titles and positions rather than names when I can. Too much of it gets awkward, but the things that I find interesting about this showdown is not that it’s Barack Obama versus John Boehner. What’s interesting, to me, is that it’s the President versus the Speaker. One day, the President will be someone other than Obama. One day, the Speaker will be someone other than Boehner. The personality conflict, the immediate political maneuverings, will be different then, but the basic institutional clash between legislative and executive, will still be there, just underneath the folds of the top-level politics.Report

  5. Avatar Barry says:

    I agree with Burt, but don’t expect that much. Congress has demonstrated decades of spinelessness on this issue, for reasons amply documents by political scientists. In addition, the the mainstream political establishment rarely takes any real actions against the War State. Too many people are happy with a situation where the president can simply order a war. And the right is the side of the establishment which most loves the War State, and the War Presidency.Report

    • Avatar Burt Likko in reply to Barry says:

      If Congress wants to be spineless and cede the effective power to take us to war to the President without saying so, it can readily do so: Boehner can draft and take to an immediate vote a resolution acknowleding that a state of war exists and ratifying U.S. activity under the NATO and UN commands. Or a declaration of war against the Loyalist rump government of Libya and encourage the President to enter into a military alliance with the Libyan NTC.

      Instead, we have legal brinksmanship that, as you point out, will likely change nothing going on out in the Med — but makes it look like we could have to ground our planes Saturday morning, which makes it look like we’re feckless allies becuase we can’t get our political s**t together.

      It’s ultimately a political problem and it should have a political solution. The legal, constitutional resolution that I can see (assuming it resolves on principled grounds) reaches that same unacceptable result of Congress pulling the plug on something we maybe shouldn’t have got into in the first place, but now that we are in, we’d be best off seeing it through to completion.Report

      • I think it’s proper for Congress to call on the administration to observe the proprieties of the WPA. Which is what it’s doing. Such a call is not tantamount to opposition to the Libya thing; if there were a strong current of opposition, then the measures Mr. Likko limns would indeed be taken.

        In fact, If we can believe the World Socialist News Website [and who doesn’t?]

        Boehner tabled Dennis Kucinich’s far more condemnatory resolution out of [prudent?] fear that GOPers would vote for it to stick one up BHO’s wazoo, and turn a legitimate issue into a partisan one.Report

        • Avatar Robert Cheeks in reply to tom van dyke says:

          Dennis-the-menace, now that’s the last decent commie-Dem in the House. He doesn’t photograph his penis, and he’s a stay-at-home-mind-your-own-bidness Democrat, and there aren’t many left.Report

          • I’m digging the bipartisan love-fest here guys, between Blaise’s praises for Hatch and Graham and Bob dropping some serious respect for Kucinich. Gives me hope. Makes me feel all fuzzy and Broderesqe.Report

            • Avatar BlaiseP in reply to Burt Likko says:

              Heh. I have this theory about politics, a rough analog of the scientific method. When a law is enacted, it’s rather like an experiment, we can made some chalkboard guesses but we’re never really sure, empirically, how things are going to pan out. So we passed the 18th Amendment, the Law of Unintended Consequences took over and we ended up repealing it. Curiously, there are statistics to support the assertion many crimes and social ills were attenuated by Prohibition, as the Temperance folks had said. But politically, it was madness. The War on Drugs seems to obey the same law of unintended consequences.

              Hypotheses are a dime a dozen, but until they’re tested, we won’t know. If the Republicans are in charge, it’s because the Democrats screwed up and vice-versa. We let the experiment run for a while, the results come in and we match them to the hypothesis.

              No politician is ever going to promise something the folks don’t want. Chickens in pots, cars in garages, jobs, security, oh they’ll tell us what we want to hear. They’ll try to scare us, hoodwink us, make us shit our pants in terror about nonexistent threats and monsters in the lake. These people will say anything. But can they deliver? If they can, we keep ’em. If they can’t, out they go.

              High Broderism was always stupid. Both sides can’t be right. Not all hypotheses survive the experiment. Politics is the art of the possible and therefore the empirical. Can the politician deliver on his promises? We’ll never know until he’s had the chance. We can’t rule anyone out because the argument sounds stupid.Report

            • Avatar Robert Cheeks in reply to Burt Likko says:

              Burt, you’re beginning to be my favorite. Yes, Dennis is so far to the left he’s popping up on the right.Report

              • Avatar Wolfgang in Pauper's Grave in reply to Robert Cheeks says:

                Dennis is so far to the left he’s popping up on the right.

                No Roberto, Barry did not attend law school. Anywhere. At any time.

                Within the next week or so, Breitbart is going to be releasing damning evidence that shows the Bamster had a body double (paid for by Billy Ayers) attend Harvard Law School. Apparently, the body double was none other than Stokely Carmichael who went through extensive plastic surgery at Harvard Medical School hospitals to pull off this caper. Breitbart says that after the 3rd grade, there is no evidence Barry attended any schools in the United States rather there is an enormous amount of evidence–videos, pictures, interviews showing Barry attending the most radical madrases in Saudi Arabia.

                He is also seen in several video clips, riding camels with Ayers, Warren Beatty, and Jane Fonda–all smoking brick size quantities of hashish in his bong with Barry singing a rap version of The Star-Spangled Banner.

                I mean, what the heck? Is it believable? Absolutely. Schadenfreude? Insanely so. And why do you suppose he wanted to be photographed wearing Lederhosen, a fake Hitler moustache, and a SS helmut?

                Sad, but true. Et tu, Brutus. I guess even Jerimiah Wright is seen in one of the videos condemning “money changing tricky, hook-nosed shysters,” whom the chickens are coming home to “roost and roast”.Report

          • Avatar Wolfgang in Pauper's Grave in reply to Robert Cheeks says:

            No Roberto, Barry did not attend law school. Anywhere. At any time.

            Within the next week or so, Breitbart is going to be releasing damning evidence that shows the Bamster had a body double (paid for by Billy Ayers) attend Harvard Law School. Apparently, the body double was none other than Stokely Carmichael who went through extensive plastic surgery at Harvard Medical School hospitals to pull off this caper. Breitbart says that after the 3rd grade, there is no evidence Barry attended any schools in the United States rather there is an enormous amount of evidence–videos, pictures, interviews showing Barry attending the most radical madrases in Saudi Arabia.

            He is also seen in several video clips, riding camels with Ayers, Warren Beatty, and Jane Fonda–all smoking brick size quantities of hashish in his bong with Barry singing a rap version of The Star-Spangled Banner.

            I mean, what the heck? Is it believable? Absolutely. Schadenfreude? Insanely so. Who can’t find humor in Barry riding camels dressed in Lederhosen and smoking a bong doing rap.

            Sad, but true. Et tu, Brutus. I guess even Jerimiah Wright is seen in one of the videos condemning “money changing tricky, hook-nosed shysters,” whom the chickens are coming home to “roost and roast”.

            The video also shows Barry ridingReport

  6. I’m very much on board with the House pressuring Obama to at least feign adherence to some Constitutional procedure vis-a-vis war-making.

    I also think the Libya mission has been woefully incoherent and half-assed in conception and execution. It’s almost everything the Powell Doctrine would advise against. And it neuters any argument one could hope to make for R2P being a relatively limited, non-partisan doctrine.Report

  7. Avatar Burt Likko says:

    Important update, y’all. The White House has announced that it has decided that the Libyan confilct is not the sort of conflict that was contemplated by the War Powers Resolution, because “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.”

    Here’s direct from the official report to Congress: “Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actions, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad. The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.” That is the totality of the “legal analysis” offered by the White House regarding compliance with the War Powers Resolution.

    A new theory entirely! Not that the WPR is unconstitutional, not that the President has complied with the WPR, but rather,this one doesn’t count. I’m going to hit the books and offer a supplemental opinion of this.Report

  8. Avatar tom van dyke says:

    Mr. I, I implore you to set down the snark & get up to speed on this. It’s in The New York Times and everything:

    “While many presidents have challenged the constitutionality of other aspects of the War Powers Resolution — which Congress enacted over President Nixon’s veto — no administration has said that the section imposing the 60-day clock was unconstitutional. In 1980,the Office of Legal Counsel concluded that it was within Congress’s constitutional power to enact such a limit on unauthorized hostilities.

    Mr. Bauer and Mr. Koh said the 1980 memorandum remains in force, but that their legal argument does not invoke any constitutional challenge to the act.

    It was not clear whether the Office of Legal Counsel has endorsed the White House’s interpretation of what “hostilities” means. Mr. Bauer declined to say whether the office had signed off on the theory, saying he would not discuss inter-agency deliberations.”

    There is indeed a break with precedent. And here—Bi-partisan objection, by the rank & file, not the leaders or the bozos, equal numbers of Dems and GOP, according to Greenwald:

    WASHINGTON (AFP) – The US House of Representatives voted to prohibit the use of funds for American military operations in Libya.
    Lawmakers adopted the amendment to a military appropriations bill by a vote of 248 to 163.
    A number of members of Congress have recently expressed their dissatisfaction at President Barack Obama’s decision to go ahead with operations in Libya in March and to continue without congressional authorization.
    The amendment, introduced by Democratic representative Brad Sherman from California, invokes the War Powers Resolution, a 1973 law that limits presidential powers on sending troops abroad into combat zones without the consent of Congress.
    Sherman’s text states that “none of the funds made available by this act may be used in contravention of the War Powers Act.”

    Sherman’s one of my local congresscritters. A straight up dude, Democrat all the way, but not a demagogue or weirdo. “Centrist,” I kid you not.

    Pls, do not feed the beast. There’s a genuine issue here. And you know, it’s not that I’m all stoked up on this, but I just hate intelligent and principled discussion getting shouted down on this blog, which is one of the few anywhere that even tries.Report

    • Avatar Burt Likko in reply to tom van dyke says:

      I can’t fault Elias for expressing cynicism about the White House’s attitude towards the rule of law and the Constitution’s limits on powers. I tend to share that attitude and his profound disappointment with a President who had led us to expect better from his Administration in this arena than what we’ve been getting.

      But I do think this is a significant issue, one which warrants sober comment, analysis, and concern. The political ironies of the immdiate situation, the backdrop of a seemingly pointless I-Can’t-Believe-It’s-Not-A-War, and the prospect of the promised-for-forty-years showdown about the Constitutionality of the WPR, leaves me thinking that this will be one of the most significant legal issues of the year.Report

      • I haven’t shouted down anyone, though. No idea where that’s coming from.

        I’m snarking not because I don’t think this is an issue worthy of discussion but more because I feel that this is fretting about the barn door long, long, long after the horses have not only left but engaged in some “limited police actions” along their way.Report

        • Mr. I, I was referring to the generic snark that’s been clogging the pipes hereabouts when it has absolutely nothing to do with the original post. I’ve found your own recent work praiseworthy.

          As to the issue, the Libya thing doesn’t fit neatly into the general skepticism about America and military force. The past two presidents didn’t ignore Congress or the WP Act. There were votes and everything.

          Besides the legal/constitutional problem, it’s simply bad governance. A majority of the country thinks this is a bad idea, and although I admire a president doing what needs to be done [say FDR evading the Neutrality Act], there’s simply no grave and immediate threat to the republic in Libya [which the War Powers Act explicitly leaves room for, for the C-in-C to do what’s necessary in a crisis].

          Absent such a crisis, we should be making such decisions as a nation. And anyone who’s been on about Congress abandoning its duties to an imperial presidency, well, here’s a legitimate step. It’s not about Bush and it’s not about Nixon. It’s about Brad Sherman.Report

          • I think it’s almost impossible to argue that Obama has not only continued Bush’s legacy on Executive Power in war and national security policy, but he has furthered and expanded its boundaries and thus made it his own. I think to some degree this is the consequence of a larger political dynamic that renders individual action by politicians somewhat secondary; but Obama has taken the scissors given to him and run with them. It might be a consequence of his insecurity on defense/security matters as a man or as a democrat — or he might just imagine himself entitled to what seems to us a disproportionate purview.Report

            • Avatar Scott in reply to Elias Isquith says:


              Didn’t candidate Barry promise to drop the scissors and bring us hope and change from the dark evil days of the Bush administration? I thought so but maybe I misunderstood him.Report

      • Avatar Barry in reply to Burt Likko says:

        Only if Congress wants it to be; my bet is all sizzle and no steak.Report

  9. Avatar Scott says:

    Apparently Hillary has stolen Blaise’s line and is asking US lawmakers whose side they are on since they have the nerve to ask Barry to obey federal law and won’t rubber stamp his actions.