Foreign Policy

White House Legal Team Scrambling to Justify Staying in Libya

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From the New York Times

President Obama and his legal advisers are deliberating about how the United States military may lawfully continue participating in NATO's bombing campaign in Libya after next week, when the air war will reach a legal deadline for terminating combat operations that have not been authorized by Congress.

Under the War Powers Resolution of 1973, a president must terminate such operations 60 days after he has formally notified lawmakers about the introduction of armed forces into actual or imminent hostilities. The Libya campaign will reach that mark on May 20.

Though Congressional leaders have shown little interest in enforcing the resolution, James Steinberg, the deputy secretary of state, was asked Thursday about the deadline at a Senate Foreign Relations Committee hearing.

He said the administration was examining the military's "role and activities as we move through the next period of time" and would consult Congress about evaluating "what we think we can and can't do."

"Mindful of the passage of time including the end of the two-month period, we are in the process of reviewing our role, and the president will be making decisions going forward in terms of what he sees as appropriate for us to do," Mr. Steinberg said.

The administration apparently has no intention of pulling out of the Libya campaign, and Mr. Steinberg said that Mr. Obama was committed "to act consistently with the War Powers Resolution." So the Obama legal team is now trying to come up with a plausible theory for why continued participation by the United States does not violate the law.

[Via]

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  1. The Libya campaign will reach that mark on May 20.

    Isn’t the Rapture supposed to take place around May 20?

    1. May 21. Maybe that’s how it comes about…stay in Libya, incur God’s wrath, he takes the predestined saved ones and leaves the rest of us to fight a nuclear war over Earth’s remains. The Muslims will get what they want – no more infidel Christians in the way and a clear path to eliminate Israel.

      Sounds about right, right?

      1. So would that make Obama the Antichrist?

        1. Shit. All those crazy bible-clingy Christians were RIGHT.

          Fuck.

        2. Obama might be worse (@7:16 pm) https://reason.com/blog/2011/05…..tcontainer

    2. I don’t tweet or follow Twitter but it might turn out to be a real blast on the 21st.

  2. It’s simple: just declare everyone in Libya an American citizen (the President can do that, right?) and then sentence them to death (the President can do that too, can’t he?)

    Now, what about some damn high-speed rail?

    1. Can he do that?

      Here’s an alternative scenario. A SEAL team snags some Qaddafi forces, drags them to Iraq, where they are then “killed” while “attacking” US forces. After the fact, throw some suicide vests on them, and what do you get? War on terror!

    2. (the President can do that, right?)

      According to the Constitution, Congress is in charge of rules for naturalization, but I’m sure Obama’s legal team can explain why that doesn’t matter.

  3. what is the meaning of the words “kinetic military action”? Surely if we do not call it a war, then inconvenient laws like the War Powers Act/Resolution would not be applicable…on the other hand, is a currency war a non-kinetic military action?

    1. Let me be clear: since this is a kinetic military action, the War Powers Act does not apply, since it is not the “Kinetic Military Action” Act.

    2. Would the US government call the Chinese lobbing some missiles on the Pentagon “kinetic military action” as well ?

    3. Energy conservation requires that potential be converted only into kinetic, and we all know the Obamarrhoids support energy conservation.

      1. Um…hello?

    4. I wouldn’t call it a kinetic military action, so much as a weaponized active response.

  4. Wait, the Civil War in Libya is still going on? The Obamessiah told us it was going to be over in a matter of mere days!

    1. It is over – who are you going to believe, Obama or your own lying eyes?

    2. The civil war is over. The current fighting is just sectarian violence. See, no contradiction.

      1. Doesn’t that mean the Iraq war was over in two months?

    3. no, obama said the op would be handed-over to NATO in days…which it was.

      1. And the US has no involvement in NATO, so..oh, wait..

        1. those are ur words, not mine.

          1. ths ur not saided by me but 4 u blargle blurg

      2. Of course, the commander of NATO is an American. His subordinate in charge of Libya is Canadian or French or something.

        The Americans involved in Libya are still subject to the American chain of command, regardless of NATO’s involvement.

      3. no, obama said the op would be handed-over to NATO in days…which it was.

        So to a liberal being “anti-war” actually means wars are OK as long as the Supreme Commander is from another country. Thanks for clearing that up for me.

        1. So to a liberal being “anti-war” actually means wars are OK as long as the Supreme Commander is from another country.

          So you’re saying that liberals who are also Birthers believe that President Obama can fight any wars he want? You may be on to something…

          1. mike – i didnt say that. and im a classic liberal who likes the american empire.

        2. So to a liberal being “anti-war” actually means wars are OK as long as the Supreme Commander is from another country the president is a Democrat. Thanks for clearing that up for me.

          1. The argument does suggest that the safest anti-war vote is to vote for the Republican President plus Democratic Congress, just as the safest anti-spending vote is the Democratic President plus Republican Congress.

            1. So we get to choose between war and fiscapocalypse? Wonderful.

              1. Choose? My friend, just for you, I give special deal: two for price of one!

      4. If handing it over to NATO means that it’s not a war, then that damn sure means that a Sense of the Senate Resolution saying that the United Nations should consider a no fly zone isn’t a declaration of war, even if you accept the way it was bait-and-switched into being passed by the Senate alone.

        So regardless of the War Powers Act being constitutional, it isn’t even a declared war.

  5. “””””The administration apparently has no intention of pulling out of the Libya campaign”””‘

    But, but, but, my TV told me that we had turned the “kinetic action” over to NATO.

  6. Who can challenge him on this?
    Seriously.
    Who and under what jurisdiction could challenge him?
    Is this just an unenforceable law?

    1. No a law requires either the president’s signature or a presidential veto overridden by 2/3 of both house.

      The war power resolution has neither and is an example of congressional masturbation.

      I love the irony of it “applying” to the actions of a socialist president after decades of media hype based on the idea that it was a partisan trick to be used against the republicans.

      1. The War Powers Act itself was passed over a veto. What you’re claiming here is that the Congress cannot pass a law that gives an exercisable power to Congress without involving the President. I believe that depends on exactly how it’s structured; you’re making an argument that it’s like INS v. Chadha, right?

        The traditional objection to the War Powers Act is more of an Article I versus Article II issue, IIRC.

      2. There’s absolutely no question that the War Powers Act is properly enacted law. What’s questioned–by presidents–is whether it exceeds Congress’ constitutional authority. It may, to some extent, but the situation where presidents commit acts of war without congressional authorization is far less constitutional.

        1. He’s arguing that the process for enforcing it is a legislative veto, like in the INS case above, not that it wasn’t enacted properly. I still disagree.

          1. Okay, I still disagree, too.

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  8. Please allow us to clarify.

    When the President said that we are turning the “military operations” over to NATO, he was addressing only seriously ill military personnel in need of surgery. His prior statements are entirely consistent with our remaining involved in Libya.

    See? No conflict. Just like our position on medical marijuana.

    Tommorrow we will explain how our prior statements about not defending DOMA are entirely consistent with our continuing to defend it.

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  10. The obvious solution is that congress actually does its job and votes on the fighting. The elephant in the room is that neither the administration nor the congress wants to do this.

  11. Purely a PR exercise. Their consultations with Congress will be no more than checking to see if anyone is going to make a stink. If no one (who matters) is, then it will be business as usual.

    A Constitution that no one is willing to enforce is mere paper. See, if we really had a Living Constitution, then it would rise up, storm down the Mall, and kick Obama in the taint.

    But, its just words on paper, not actually alive, so nothing will happen because (a) the Dems will do nothing to harm their President and (b) the Repubs see no short-term political upside in reigning him in, and rather like the precedent being set. “You today, me tomorrow” and all that.

    1. You are only as good as your population and the people who make up your government. Why doesn’t Congress care? Because the American people don’t care. IF they did, Congress would care if for no other reason than out of survival instinct.

      1. Unfortunately this is quite true.

        At the very least, I’d expect Sen. Rand Paul to continue to offer resolutions, and we’ll see if there are any Democrats who believe that the War Powers Act actually applies to Democrats. He got 10 Republicans for his symbolic resolution a month ago (ranging from the Mainers to DeMint), no Democrats.

        Most of the Republicans ignoring the issue have always felt that the War Powers Act is unconstitutional, so perhaps in some sense they’re less hypocritical. Perhaps we’ll get to test it in court.

      2. I agree.

        I think Obama’s would like John Yoo back in the OLC for this one.

    2. Well, they have managed to piss off Sen. Lugar by refusing to send a DoD witness to a Senate Foreign Relations Committee hearing on Libya.

      Sen. Lugar matters more than the other 9 Senators who voted for Sen. Rand Paul’s resolution.

    3. If for no other reason, a not-useless Congress would protest on procedural grounds and vigorously defend its prerogatives. Failure to do that guts the concept of checks and balances.

  12. the Obama legal team is now trying to come up with a plausible theory for why continued participation by the United States does not violate the law.

    If the President does it, well…

    you know.

    1. and here’s a chance for the Media to engage in some real journalism… if only he were a Republican. THEN, tough questions would be asked. Probably.

      1. And get posted to Youtube?

  13. Isnt it high time the US stop playing World POlice and start dealing with its own problems? I mean seriously folks. Enough is enough.

    http://www.anon-web.es.tc

    1. Anonobot just lost its chance at the Republican nomination. Foolish Anonobot!

  14. Funny how those “it will only take days” turn into weeks, then months and then years. Also it is funny how the Nobel peace prize winner (key word being peace here) seems to be doing a lot of non peaceful things.

    1. funny how the Nobel peace prize winner (key word being peace here) seems to be doing a lot of non peaceful things.

      What do you mean?

  15. The only thing worse than fighting the wrong war is fighting any war not to win. I don’t see how Obama could fuck this up any more than he is.

    1. land Marines with unclear rules of engagement or goals?

    2. i agree that obama is effed-up

    3. I don’t see how Obama could fuck this up any more than he is.

      I have a feeling you’re going to find out pretty soon.

  16. Can’t he just use the Commerce Clause?

    1. The Commerce Clause clearly authorizes regulation of commerce with foreign nations. We are merely requiring that missiles exported to Libya be armed and delivered directly to their destination, rather than FOB the factory.

      1. The regulation of commerce with foreign nations means ‘make rules about’, which includes mandates. Therefore since the leader of a foreign nation has a substantial effect on commerce with foreign nations, the commerce clause allows mandating the removal of the foreign leader.

        (Is that about right, Minge?)

  17. Another interesting thing about Libya, is that is a conflict in Africa. Yes I know the Sahara desert is practically an ocean dividing the Mediterranean African countries from the sub-Saharan ones, but still Africa nonetheless. There have been grumblings in Africa as far away as South Africa about Western intervention seen by some as a replay of old style imperialism. Americans wanted to create an AFRICOM zone for their army, it was not well received by Africans. I think NATO knows this, that is way sending soldiers on African ground is a big problem.

    Khaddafi has kept the flood of refugees wanting to get into Europe in check, now he is actively supporting it, it is a powerful weapon. The European governments know that if the flood continues their own populations will openly want Khaddafi back, that is why they are so desperate to finish this quick.

  18. Where would be today if Bush had been forced out of Iraq and Afghanistan after 60 days?

    1. Hard to say, but in both cases Bush actually got a vote of Congress before going in.

      Politico’s claiming that an increasing number of House GOPers are ready to leave Afghanistan now.

      1. Good point. No doubt Obama is exempt from war powers because he wisely intervened without asking congress. Yeah that’s the ticket.

    2. Obama never would have even won the nomination.

    3. Where would be today if Bush had been forced out of Iraq and Afghanistan after 60 days?

      Iran?

    4. Bush had “Congressional authorization” required by WPA in both cases. I still don’t accept those as valid replacements for a declaration of war, but that’s a constitutional issue, not a WPA one.

  19. What ever happened to that whole “weeks not months” claim?

    1. That was the expiration date on the Presidential promise, not the expiration date on the kinetic military action to protect the Libyans from being killed by killing them.

    2. It went into the memory hole.

    3. 9 weeks is still weeks.

      1. So is sixty million weeks.

  20. I’m not really interested in which slippery weaselly way they’re going to use to enable this intervention to continue. What I want to know is: why do it? Is this really some point to all of this?

    1. Because this is a bleeding heart, liberal intervention not a rapacious, capitalist imperial war.

      See?

  21. What I want to know is: why do it? Is this really some point to all of this?

    I think that certain tranzi elements in the administration saw Libya as an opportunity to advance the tranzi agenda. Libya was nothing more than an opportune crisis, which this administration is loath to waste, to set some precedents:

    (1) US armed forces can be deployed where we have no national interests at all.

    (2) US armed forces can be placed under the (nominal, for now) control of international organizations.

    (3) Armies are not properly used to fight wars in the olde sense, rather, they should be used as agents of revolution, to enable the masses to rise up against their oppressors.

    These are merely the necessary first steps in subordinating sovereign armed forces to transnational progressive organizations, the dream of tranzis everywhere.

    1. !WAR ON SMOKING! well if nothing else, Iraq targeting the real evil: smoking.

      http://www.nytimes.com/2011/05……html?_r=1

    2. DO YOU HAVE A NEWSLETTER MR DEAN??

    3. “”(1) US armed forces can be deployed where we have no national interests at all.””

      World security has become a national interest long ago. Plus we are talking about a state that sponsered terrorism, that always seems to be a national interest for POTUS. Not that I that I think it’s right, just sayin.

      “”(3) Armies are not properly used to fight wars in the olde sense, rather, they should be used as agents of revolution, to enable the masses to rise up against their oppressors.””

      Iraq? Execpt the Iraqis tried and failed so we had to do it for them.

  22. Oh, and (4) US armed forces can be deployed by the UN without the consent of Congress.

  23. the reasoning process of the administration.

  24. So, Obama is revising Nixon’s doctrine that an illegal act is not illegal when the president does it.

    1. Come to think of it, that was the Left’s argument for letting Clinton off the hook for perjury.

    2. Wasn’t that pretty much Bush’s arguement too?

      1. …do solemnly swear…

        1. They all swear, and it never seems to matter.

  25. If Congress wants to stop this war, or the war in Iraq, or the war in Afghanistan, they can use their power of the purse string to stop it.

    That’s how Vietnman ended. They voted to cut funding for American participation in 1973, and they refused to fund the South Vietnamese when they were overrun by the North in 1975.

    The idealistic world where Congress stands up to the president on authorizing the use of force only exists the world of make-believe.

    The world where Congress refuses to fund a presidnet’s war actually exists in reality. If you don’t want us to be in Libya, then you should focus your efforts on Congress.

    The president twisting the law to justify whatever he wants to do is not a new phenomenon. If you don’t think the Constitution took that into account, then you must not think very much of the Constitution.

    1. “”That’s how Vietnman ended. They voted to cut funding for American participation in 1973, and they refused to fund the South Vietnamese when they were overrun by the North in 1975.””

      Wasn’t that war in the loss column? I don’t think it will be easy to get Congress to defund any war because it will become a cut and run, or loss.

      1. I think the question of whether we won or lost shouldn’t take precedence over the question of whether staying or leaving is in the best interest of American security.

        Our presence in Vietnam destabilized the countries next door, and I think leaving was better for American security than staying.

        If we left Afghanistan right now, we’d be leaving with the Taliban still operational and with a significant amount of influence–that’s like Vietnam. I’m not as interested in whether people want to call Afghanistan a “win” or a “loss” as much as I’m interested in whether our continued presence there is destabilizing a nuclear Pakistan, etc.

        Either way that pans out, if it’s in our best interest to leave Afghanistan–regardless of whether it’s a “win” or a “loss”–then I think we should do whatever is in the United States’ best interest.

        Just like we did in Vietnam.

        1. I agree.

          But gotcha politics will be front and center in DC. Besides, many citizens bought into the cut and run game the Bush admin played in 2004.

  26. “”The president twisting the law to justify whatever he wants to do is not a new phenomenon.””

    Exactly, both Rs and Ds.

    1. Obama is twisting the law with a new degree of zealousness, with his cult of protectors circling the wagons.

      1. Bush is twisting the law with a new degree of zealousness, with his cult of protectors circling the wagons.

        1. Lincoln is twisting the law with a new degree of zealousness, with his cult of protectors circling the wagons.

          1. I don’t think anyone has beat Lincoln at that game yet.

            1. maybe nixon

              1. Not even close.

            2. Wilson or FDR, maybe. But probably not.

    2. Absolutely.

      Just about every president going back to the Alien and Sedition Acts…

      Because criticizing the President during peace time is one thing–but criticizing the President in times of war? That’s treason!

      Don’t they know there’s a war going on?!

      This is what executives do. They push and push the line, and our job as libertarians is to hold it. But we don’t have to be silly about it!

      Nothing is unprecedented. Lawyers spinning the law for the president to get around laws? Is about as surprising as fish breathing underwater.

      It’s happened before!

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  28. role and activities as we move through the next period of time” and would consult Congress about evaluating “what we think we can and can’t do.”

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