The New York Times is reporting that President Obama has chosen to disregard, or at least overrule, the view of some of the top lawyers in his administration on the legality of the continuing war in Libya. The head of the Justice Department’s Office of Legal Counsel and the General Counsel of the Defense Department have apparently both advised the president that the ongoing military action is not consistent with the War Powers Resolution. The act, which was passed in the wake of Vietnam, requires the president to seek congressional authorization for war 60 days after the onset of hostilities, except in cases where the United States is under attack. The war in Libya obviously doesn’t qualify, but other lawyers in the administration have argued that because the U.S. is now largely playing a supporting role in the NATO campaign, it doesn’t rise to the level of “hostilities.” The Times reporter, Charlie Savage, notes that it is “extraordinarily rare” for a president to override the conclusions of the OLC.
I’m not qualified to judge the legal arguments, although it seems significant that even the top DOD lawyer thinks that the War Powers Act applies to this case. In any event, though, the president’s decision certainly seems to violate the spirit of the act, which was passed precisely to put a check on presidential war-making. For once I’m inclined to agree with (gulp!) John Boehner:
The White House says there are no hostilities taking place. Yet we’ve got drone attacks under way. We’re spending $10 million a day. We’re part of an effort to drop bombs on Qaddafi’s compounds. It just doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities.
Of course, Congress is hardly blameless here as it has largely ceded its constitutional authority and responsibility for declaring war to the executive branch over the last several decades.