Obama's Koh-Dependent Defense of His Nonwar

Yesterday Harold Koh, the State Department's legal adviser, explained to the Senate Foreign Relations Committee why bombing Libya does not amount to "hostilities" under the War Powers Act:

"From the outset, we noted that the situation in Libya does not constitute a war," Mr. Koh said. He cited four factors—ground troops and significant non-air forces have not been involved, the lack of American casualties or a significant threat of them, a limited risk of escalation, and the limited use of military means—as the central points of logic in the administration's decision to essentially ignore Congress beyond providing largely perfunctory information.

That logic was rejected by many members of the committee.

Senator Jim Webb of Virginia, a Democrat, said, "When you have an operation that goes on for months, costs billions of dollars, where the United States is providing two-thirds of the troops, even under the NATO fig leaf, where they’re dropping bombs that are killing people, where you're paying your troops offshore combat pay and there are areas of prospective escalation—something I've been trying to get a clear answer from with this administration for several weeks now, and that is the possibility of a ground presence in some form or another, once the Qaddafi regime expires—I would say that's hostilities."

A Republican senator, Bob Corker of Tennessee, went further, accusing the administration of "sticking a stick in the eye of Congress" and saying it had done "a great disservice to our country."

The New York Times notes that "officials from the Department of Defense and Department of Justice"—whose lawyers, including the staff of the usually authoritative Office of Legal Counsel, disagreed with Koh's interpretation of the War Powers Act—"declined to provide witnesses for the hearing." The committee ended up approving a resolution that authorizes continued U.S. participation in Libya's civil war for another year, which passed by a vote of 14 to 5. Unfortunately, there was no vote on the question of whether Harold Koh is full of shit.

Last week Gene Healy noted that Koh, a former Yale Law School dean who used to be known as "the leading and most vocal academic critic of presidential unilateralism in war" (in the words of former OLC head Jack Goldsmith), swears his principles have not changed. Also last week, I observed that an OLC that can "say no to the president" is no help when the president refuses to take no for an answer, while Stephen Colbert suggested how Koh's logic could be used to declare peace in Afghanistan.

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  • Old Mexican||

    "From the outset, we noted that the situation in Libya does not constitute a war," Mr. Koh said.


    "The situation where people and people's property are being blown up into tiny bits by our bombs cannot be construed as a war, ok?"

    Up is down. Tony should place this guy's photo on his mantle, they think alike.

  • Name Nomad||

    Hmm... "war is peace." Where have I heard that one before? Must be in the Constitution or something.

  • Winston Smith||

    Koh is double-plus good.

  • What a little war prick....||

    How does O-bomb-a convince the pencil-necked intellectual crowd to provide legal cover for all sorts of military expansionism, invasions, takeovers and bombings? Buyouts? Party invitations? Cheap flattery? Whores?

  • Mr Obvious||

    Waivers!!

  • Book of Armaments, Chapter 2||

    The situation where people and people's property are being blown up into tiny bits by our bombs

    <chant>In Thy mercy.</chant>

  • JT||

    I don't give a flying fuck if it violates the War Powers Act. It violates the Constitution.

  • Almanian||

    The President has a message for you:

    "Let me be clear. I don't give a flying fuck if it violates ANYTHING. We're in, and it's not war, cause I SAY it's not war. I am the law. God Bless Amerika."

  • Bingo||

    "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean — neither more nor less."

    "The question is, " said Alice, "whether you can make words mean so many different things."

    "The question is," said Humpty Dumpty. "which is to be master — that's all."
  • aeronathan||

    With Kohs definitions, nuking North Korea and Iran wouldn't be considered "hostilities"...

  • ||

    Neither, as was previously pointed out, would the events of December 7, 1941.

  • In Time of War||

    So, by this logic we can't really consider 9/11 to be a hostile act...

  • ||

    Oh, man, we'd better apologize.

  • ||

    Neither would a SWAT team kicking down your door shooting you, the wife, the kids, and the dogs.

  • ||

    As Tom Tomorrow has pointed out: http://www.dailykos.com/story/.....etail=hide

  • ||

    This is such utter, indefensible bullshit. Can't get Congressional authorization? Aren't defending American territory, personnel, or property? Guess what--you can't fucking do it.

  • Tman||

    Two reasons we've already had "troops on the ground" thus you can easily dismiss that argument:

    1.)If the Navy/Air Force are dropping GBU-12 laser-guided bombs on Libya then we have spotters on the ground directing the location of the target to the air. GBU's usually means we have boots on the ground.

    2.) We had two F/16 pilots that had to bail over Libyan airspace and land in non-hostile territory (thank god). There's your second boots on the ground.

  • ||

    2.) ....

    what if they stayed on their ejection seats? Like when kids pretend the carpet is lava. See, no boots on the ground then, nya-nya-nya.

  • ||

    Well, if the troops were wearing boots and clothes and never actually let their bare skin touch Libyan soil, technically, no troops were on the ground.

  • Paul||

    Hot lava figures very highly in the psyche of the 5 year-old.

    I wish we could get war to figure as highly in the heads of our presidents.

  • ||

    Technically, if you spread a blanket on the floor, then there is a safe zone from the lava. Each pilot could do the same with their parachute, or their seat cushion, or their own blankie if they brought one. Presto, safe zone, no boots on the ground.

  • ||

    This is such utter, indefensible bullshit. Can't get Congressional authorization? Aren't defending American territory, personnel, or property? Guess what--you can't fucking do it.
    @ I paid $32.67 for a XBOX 360 and my mom got a 17 inch Toshiba laptop for $94.83 being delivered to
    our house tomorrow by FedEX. I will never again pay expensive retail prices at stores. I even sold a
    46 inch HDTV to my boss for $650 and it only cost me $52.78 to get. Here is the website we using to get
    all this stuff, BetaSell.com

  • Gray Ghost||

    I agree with your first point, Tman, even though in theory you could do all of the target designation and BDA from drones. In practice, there's someone there to point out which set of brown people to kick the shit out of. Whether they're carried on the books as U.S. military personnel, or as contractors, I don't know.

    It's all kinda of academic, as long as Congress keeps refusing to substantively jerk the choke chain on the Executive Branch, either by explicitly cutting the funding, or by reading out Articles of Impeachment.

    Didn't we also lose a helicopter too at some point?

  • aeronathan||

    You don't have to have guys on the ground to spot for laser guided bombs.

    Some aircraft are capable of self designating with various targeting pods and other aircraft work in tandem to accomplish the same....

  • Tman||

    Technically true aeronathan, but I know several people who have been spotters in Iraq and Afghanistan, and what they explained to me is that human intel on the ground makes a lot less of a mess than drones or other surveillance from the air. Considering this is a "bomb the bad guys from the air and don't hit the wrong neighborhood" kind of operation, I would tend to believe that we have spotters doing this on the ground as to insure minimal civilian accidents.

    But I could be wrong, and you are correct that technically they could still aim the GBU's without ground support.

  • Achtung Coma Baby||

    Michael Moore explains why Bush's illegal war was worse than Obama's legal war:

    http://www.youtube.com/watch?v=6vzf624FeZg

    Fuck, Olbermann is back.

  • Achtung Coma Baby||

    Obama's illegal war

    Fuck, my rage at my Moore can fuck with my typing sometimes.

  • Paul||

    We knew what both you, and Obama mean.

  • ||

    ACB,
    You said that like it was a real surprise.

  • Achtung Coma Baby||

    Fuck, the Moore lovers' (Seriously, even if you agree with his politics, they guy is a fat, fucking pig!) comments on that video are sickening.

  • Old Mexican||

    Re: Achtung Coma Baby,

    Michael Moore explains why Bush's illegal war was worse than Obama's legal war


    I knew it! I knew Michael Moore was not being serious!

  • ||

    If Moore is talking about either Afghanistan or Iraq, Bush got AUMFs (arguably, the one for Iraq was better than the overly broad one for Afghanistan, though the latter is usually viewed as the "good" war). There's some debate over whether those are true declarations of war (I believe most scholars view them as adequate), but they are far, far closer to meeting constitutional muster than what the current jackass is doing.

    Bush was a horrible president. And Obama is worse. Pretty much across the board.

  • ||

    ^this

  • Jersey Patriot||

    Let me know when Congress sacks up by cutting funding and drawing articles of impeachment. Jawing with Obama's junior associate doesn't count.

  • ||

    The partial defunding bill failed in the House partially because of a lot of people who said that they didn't want to only partially defund because it would implicitly fund the other stuff. (Ron Paul and the Congressional Progressive Caucus.)

    Personally, I agreed with Kucinich that the House should partially defund first, then come back with full defunding.

  • ||

    [janbrady]Partial, partial, partial![/janbrady]

  • Almanian||

    Noyce!

  • cynical||

    I was reading somewhere earlier (I want to say the rebuttal to Time's dumbass Constitution story) that war funding was taken by the courts in the past as an implicit declaration of war. I can understand wanting to avoid any chance of that.

  • A Secret Band of Robbers||

    By doing jack shit? That looks even more like an implicit declaration of war to me.

    I'm sure it would make a lot more sense if I were in congress or the courts.

  • ||

    How the hell "fuck you and your War Powers Act" does not rise up to the level of "I did not have sexual relations" is beyond me.

    Congresscritters are as disgraceful as Saint Obama.

  • ||

    Oval office BJ's are easier for the average voter to understand than constitutional issues. You score no points with the folks back home by making valid legal points, at least not with the voters you need to actually encourage to vote.

  • Apogee||

    Koh is correct - his principles haven't changed.

    He's a loyal Democrat.

  • ||

    I think you meant to say he's full of Democrap.

  • Koh Ho coverin fo da War Ho.||

  • Hugh Akston||

    I've said it before, but I really don't get why Obama is going through this complicated dance of obfuscation. Is there any doubt that Congress would rubber stamp an authorization and give him all the funding he needs?

    The only reason I can see for doing this end-run is to exert and expand the power of the Executi...Oh.

  • Comrade Achtung Coma Baby||

    You've thought too much.

    SIBERIA FOR YOU!

  • ||

    Hugh, I think he'd have gotten it, if he had gone to Congress within the first month.

    Now it has become a talking point, so I doubt he could get the authorization any more.

  • Hugh Akston||

    You have more faith in the strange and elusive creature known as "legislative checks on executive power" than I do.

    If Obama went to Congress for authorization tomorrow, we'd see a bunch of grandstanding from both parties about how the President has exceeded his authority and made a mockery of representative democracy (no mentions of the Constitution, except maybe from the Pauls), and how they are reluctantly voting to authorize because they support the troops and whose side are you on anyway.

  • ||

    Even that would be better than allowing a clearly and dramatically unconstitutional action to continue to occur.

    If this isn't an impeachable offense--flagrantly disregarding something the Constitution is clear on--what is?

  • Paul||

    Even that would be better than allowing a clearly and dramatically unconstitutional action to continue to occur.

    This is indisputably constitutional.

    The President's power is limited to starting any police action it wants.

    I'd spoof Tony in the 6th circuit thread, but I make it a personal rule to only do celebrity impersonations, never other posters.

  • ||

    If this isn't an impeachable offense--flagrantly disregarding something the Constitution is clear on--what is?

    I think it has been pretty clearly established that an "Impeachable Offense" is what Congress says it is.

  • Paul||

    "Obama lied! People got healthcare!" just doesn't have the right ring to it.

  • ||

    "Obama lied! People got healthcare a sham system with a Mercedes price tag and Yugo reliability!"

    FIFY.

  • Obomba dont lie||

    We rilly do got 57 states, including Iraq, Yemen, Libya, Afghanistan, Baja California, Syria (pending) and Iran (pending) plus the occupied province of Haiti.

  • ||

    As a matter of constitutional interpretation, there's actually some truth to that. No force in the universe can legally make Congress impeach a president. In fact, if the House refuses to initiate impeachment, that's it.

    It's apparent that this is a flaw in the system, and it's one of the reasons I go on about wanting a fourth branch charged strictly with removing people from office (and maybe otherwise enforcing constitutional limits).

  • Paul||

    The Clinton debacle opened up what "impeachment" really meant. It's not for violations of the law, it's for violating anything Congress doesn't like.

  • Paul||

    The takeaway is that there's not much that Congress doesn't like.

  • Hugh Akston||

    Aww, what did Monica Lewinsky ever do to them?

  • NoTalentAssclown||

    It's what she DIDN'T do to THEM... They be jealous!!!!!!

  • Kant feel Pietzsche||

    A whore is a girl who will fuck anybody. A bitch is a girl who will fuck anybody but you...

  • ||

    The only guidance in the Constitution is that impeachment of a president can be for "treason, bribery, or other high crimes and misdemeanors." Violating the Constitution, is, of course, included in this, as would things like accepting bribes, killing someone, or committing most (if not all) felonies.

    I'd say that does place some limits on the downward side of what Congress could impeach a president for--for instance, impeaching him for defaming a member of Congress probably wouldn't pass muster--but I'm not sure what mechanism exists to stop an "improper" impeachment.

    In the case of Clinton, by the way, perjury is a felony, so there's no real question that Congress could impeach him. Whether it should have is another question. Personally, I think his impeachment was justified, though I think most modern presidents have been impeachable for one reason or another.

  • Paul||

    In case my remark on Clinton was misinterpreted, I was just merely recalling the argument about whether he violated the law and the legal counter argument that Congress can impeach the president for violations of ethics.

    Here's an interesting article from someone who researched the meaning of 'high crimes and misdemeanors' from its original meaning. An excerpt:

    I have carefully researched the origin of the phrase "high crimes and misdemeanors" and its meaning to the Framers, and found that the key to understanding it is the word "high". It does not mean "more serious". It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons.

    Under the English common law tradition, crimes were defined through a legacy of court proceedings and decisions that punished offenses not because they were prohibited by statutes, but because they offended the sense of justice of the people and the court. [emphasis mine]

    http://www.constitution.org/cmt/high_crimes.htm

  • ||

    except he wasn't charged with perjury. because he's president. he's special. furhman, a cop (and cops ALWAYS get away with perjury, right?) did. he's currently a convicted felon.

    iirc, clinton took a contempt rap and lost his law license.

  • ||

    So lying under oath isn't a violation of the law any more? Got it.

  • ||

    So lying under oath isn't a violation of the law any more? Got it.

  • Meiczyslaw||

    The Hondurans give that power to their Supreme Court, and their army is expected to enforce it.

    We got a pretty good example of it in action a couple of years back.

  • Gray Ghost||

    Question for the history buffs: what authorization did the Executive get for all of the armed interventions in Latin America during the early 20th Century? E.g. (Troops to the Dominican, Haiti, Nicaragua, etc...) I don't remember Congress issuing a AUMF or the equivalent for those, but I'm probably wrong.

  • Obama||

    Those weren't wars, either.

  • Meiczyslaw||

    There have, pedantically speaking, only been five "Declarations of War" since the founding of the Republic. The rest of the authorizations have had strange names.

  • Mr. Saveloy||

    There used to be, sort of, the idea that the Army belonged to the Congress and the Navy (and with it the Marine Corps) belonged to the President. So that, since the Navy was continually at sea and thus in a sense deployed, the President could order it to take action that he deemed necessary, but that such action was limited to the scope of the Navy (i.e. operations at sea or very small operations on land that could be conducted by Marines), while more serious action requiring the use to the Army needed approval from Congress.

    Of course, the Marine Corps was much smaller then and relied on the Navy for supply and support so it could not roam far from the ships and there wasn't as much use of naval air so those incursions were much more limited than what we see today.

  • ||

    Hugh, I have to agree that Congress is spineless, so you are probably right.

    But Obama would probably have found it a lot easier to get Congress' acquiesence if he had sought it within the first 30 days. (Of course, the bombing was supposed to be over by then, wasn't it?)

  • ||

    Even if Congress was a pain about it, he could always appeal to the people to get Congress to go along.

    The problem is, of course, that if anyone has any business intervening, it's the EU, not us.

  • Gray Ghost||

    But ProL, as we saw in Kosovo, the EU can't project all-weather, precision-guided air power over North Africa, and we can. Which is the main reason I think we got involved. I agree with you on who should be getting involved in Libya. Same answer for Kosovo.

  • Hugh Akston||

    Yeah, just think how many more innocent Libyans would be blown to smithereens by the people trying to help them if the US wasn't involved.

  • Paul||

    I would pay money to see these guys get into the fight.

  • Homer||

    K'Oh!

  • ||

    K.O.(h)

  • ||

    (changing my handle to something like "wylie the boxing ref" mighta been a good idea)

  • ||

    Lying shyster lies for lying political whore, film at 11.

    -jcr

  • Achtung Coma Baby||

    Anybody remember that uber-awesome period between the Egyptian uprising* and the first few weeks of the Libyan civil war when it looked like the Middle East was on the brink of full-scale revolution.

    Goddamn, I was playing Jesus Jones' "Right Here, Right Now" everyday in hopes that millions (billions?) of people were about to be liberated.

    *Everything was cool about Egypt except the accepted wisdom about letting the military control the country until election could be held.

  • Naive Libertarian||

    [whimsically] Yeah. Good times.

  • Mr Whipple||

    So, what the fuck are the French doing for us? Is Carla Bruni going to come here and give us all free blowjobs, or just Obama?

  • ||

    You know the answer. We're a representative republic.

  • ||

    You know the answer. We're a representative republic.

  • Nobel Peace Price Committee||

    You know, I think we may have jumped the gun back '09.

    Oh, well, it was our only mistake. Can't get 'em right all the time.

  • ||

    War begets Peace.

  • David E. Gallaher/Ruthless||

    Let's think about the self esteem of the enemies of the US. Isn't Obama "bullying" US enemies by killing them and not even admitting that it's hostile? Shouldn't it be US policy to fight enemies with high self esteem? Seems like they would be easier to kill. Just wondering.

  • ¢||

    *Everything was cool about Egypt except the accepted wisdom about letting the military control the country until election could be held.

    The "Hey let's all gung-ho this military/Muslim Brotherhood co-putsch because there's students with Twitter in it" part was super-uncool.

  • Paul||

    The trick is to tell a journalist, "It's like Paris in '68!", then the articles just write themselves.

  • ||

    It's not a war when one party poses no threat whatsoever to the other.

    It's "conquest".

  • Nick Sarkozy||

    BUT I AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM NAPOLEON.

  • The Immaculate Trouser||

    Do these people experience human emotions like shame, pride and self-respect? I find it hard to believe at this point.

  • Hugh Akston||

    Obama and his possé know what is best in life.

  • Tony Weiner||

    Do these people experience human emotions like shame, pride and self-respect?

    Do what now?

  • KDN||

    I do love the reasoned and nuanced defense of this operation: "But it's not a war."

    Well played, Barack.

  • Dave's friend, Chip||

    I didn't know I couldn't do that.

  • Paul Krugman||

    War spending is stimulus spending.

  • Nancy Pelosi||

    Jobs, jobs, jobs...

  • Appalachian Australian||

    Breaking windows builds the economy, provided they're Libyan windows. St-Gobain is hiring Pieds-Noirs as we speak.

  • ||

    The Libyans aren't dying, they're pining for the Fjords.

  • NotSure||

    So if another country was lobbing a few bombs on America, but the only casulties were Americans, and that country had no troops on American soid, then that would not constitute war ?

  • Appalachian Australian||

    Correct, Mr. Not Sure. We were reminded repeatedly that 9/11 was not an act of war, but some kind of other activity. That was why no Congressional authorisation to declare war was needed.

    At least Osama bin Laden had the decency to declare war on us in his fatwā.

  • Dale Bozzio||

    What are words for when no one listens anymore.

  • Almanian||

    Man, I loved you in Missing Persons. Are you still hot and blonde?

  • ||

    she was lady gaga before lady gaga was lady gaga

  • Mensan||

    Still hot and blonde? Judge for yourself.

  • Hugh Akston||

    Also, Jacob, nice work on the headline.

  • Paul||

    A better one would be racist. I think.

  • Almanian||

    DOH! Jinx!

  • Almanian||

    This is for El Presidente Jefe, Barack Obama:

    Boots on the ground!
    Boots on the ground!
    Looking like a FOOL
    Witcha Wit no
    Boots on the ground!
    Withca
    Hat on sideways
    Lookin' like Dukakis
    Actin' like a foo
    Witcha Wit no
    Boots on the ground!

    PS "Obama's Koh-Dependent = RAAAAAAAAAAAAAAAAAAAAACIST!
    That is all.

  • Scruffy Nerfherder||

    You got it wrong, it's waissis

  • squishua||

    Gee, under those restrictions even the 9/11 terrorists didn't engage in hostilities - no ground troops and minimal air attacks. Hell, they only knocked down a couple of buildings and killed themselves in the process. And look how apeshit our govt went over that!

  • Where will Obama Bomba next?||

    Sonny Boy Williamson says "little village motherfucker, little village."

    There must be a small village in northwest Zamyemenwhazistahn with bronze-age peasant goat herders and opium farmers for Obomba to hit next -- in the name of national security. "No body bag, no "war" tag!

  • Caption||

    Ching-chong, ching-chong.

  • Caption||

    Call it; you've been calling it all your life.

  • Eduard van Haalen||

    "Kinetic military action" sounds flaky, but not flaky enough. We can do better! How about . . . *holistic* use of the armed forces! It's like holistic healing, but (arguably) deadlier.

  • Walter||

    Homeopathic

  • Eduard van Haalen||

    inclusive bombing

  • ||

    War: A redistribution of life.

  • cynical||

    So, have we learned our lesson about Asian federal lawyers with three-letter surnames?

  • cynical||

    And English first names...

  • ||

    Unfortunatelly,Mr.Koh is wright. Ancient War Powers Act says like he quoted. But senor Koh, without shit, these are modern times, and You`ve spent billions and trillion just that Soldiers foot is not on Your War Economy`s Ground (Star Wars etc.). You``re in the air babe, and hostilities are done and proved as done.That theatre of hearing( whatever it was) is retartedly organized. You should do it better next time for the buck You get. Or You think the value of the buck is goin` down, so You`re brain shouldn`t be engaged in full 8% capacity.
    I can understand Mrs.Clinton, but You - no Sir. You used to be someone.

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