Time to Discuss whether Obama Believes War Powers Resolution is Obsolete

by J. Emmanuel Bethel & Brian McLoone

We value our legal code’s potential to restrain imperialist military actions abroad, and believe it necessary to constantly examine whether our government complies with the legal and constitutional rules concerning foreign military endeavors. On these grounds, we revisited the US’s involvement in the NATO campaign in Libya, in order to judge whether this “humanitarian” military intervention abided by the letter of U.S. law.

On March 17 2011, the UN Security Council passed UN Resolution 1973 (2011), which authorized the intervention of UN member states’ military forces “to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya” and “to enforce compliance with the ban on flights” that was laid out in the Resolution. NATO—with the US, UK, and France at the helm—enforced the resolution, beginning its bombing campaign days after the resolution passed. From the outset, the Obama administration consistently emphasized the multinational nature of the Libya campaign. In a speech delivered on March 28, Obama claimed the US would play simply a “supporting role” in the campaign. Yet by all relevant metrics – e.g., number of aircraft and warships deployed; number of cruise missiles fired; number of bombing missions – the US contributed the most material and logistical support to the campaign. For instance, over the course of the conflict, the US fired 228 cruise missiles, more than any other country, while the UK fired the second most, only 18. A classified NATO report, completed in February 2012 and obtained by the Times, revealed that the Libyan campaign was disproportionately reliant upon US forces. So the claim that it was NATO, rather than the US, that carried out the Libya campaign is simply incorrect. Responsibility for the Libya campaign rests largely on the US government and, indirectly, US citizens.

Here we focus on a particular feature of the Libyan campaign: that the Obama administration’s activities in Libya violated the War Powers Resolution (WPR). Obama’s dismissal of the WPR is concerning, since it establishes the precedent that, in matters of imperialist conflict, presidents need not feel constrained by the legislative branch. Our sense is that many Democrats and self-described progressives are comfortable with such unauthorized military force while Obama is in office, and the conflict in question is a “humanitarian” intervention like that in Libya. This attitude is but one example of the obsequiousness of the center-left’s attitudes toward Obama’s foreign policy. Such an attitude is inhumane, but also dangerous; it sends the message to Democrats that left-of-center voters only care about imperialism when it is being carried out by Republicans. This obsequiousness is dangerous for another reason: Obama will not always be president, and there will certainly be other opportunities for the US to involve itself in foreign entanglements of one stripe or another. A future president might yet increase the magnitude of US imperialist policies. This is why it’s important to establish that the WPR needs to be enforced.

In 1973, Congress passed the WPR, overriding President Nixon’s veto, in an effort to curb the executive branch’s ability to unilaterally “introduce” US armed forces into hostilities. The sense of “introduce” is stated explicitly in Section 8 of the WPR to include “the assignment of member of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.” For good reason, the WPR is generally understood to be an important legislative achievement, one that could mitigate the sort of executive malfeasance that characterized the US military’s decimation of large parts of Southeast Asia.

In what way did the Obama administration violate the WPR? Section 5 of the WPR states that, within 60 days of the introduction of US armed forces, the president must terminate the use of those forces, unless Congress has declared war or extended the authorization of forces (which it did not do in the Libya case) or Congress is physically unable to meet for security concerns (which was not the case). The Obama administration ignored this deadline. Then, after nearly three months of US involvement in the conflict, it issued a report on US activities in Libya, with a single paragraph dedicated to explaining why the WPR did not apply. The report insisted “US military operations are distinct from the kind of ‘hostilities’ contemplated by the resolution’s 60 day termination provision.” Part of the reasoning used to establish this claim is that “US operations do not involve sustained fighting or active exchanges of fire with hostile forces.” That thousands of bombing missions and hundreds of cruise missile strikes, some of which were directed at Qaddafi’s compounds, do not constitute “hostilities” led Speaker of the House Boehner, correctly in our opinion, to say the administration’s statement “just doesn’t pass the straight-face test in my view.”

Apparently some lawyers within the Obama administration agreed with Boehner’s assessment. As the Times reported in June of 2011, senior legal officials at the Pentagon and Justice Department informed President Obama that they believed US involvement in the Libya campaign did in fact amount to “hostilities.” An anonymous senior level official quoted on the matter revealed that it was Obama, in fact, who rejected those viewpoints in favor of the position held by other lawyers within his administration: that because the US military presence had shifted to a “support role” by early April, the US was no longer directly involved in hostilities in Libya and therefore the 60 day time-window was irrelevant. The US military’s “support” role included refueling coalition aircraft, providing surveillance, and using unmanned aerial vehicles (UAVs) to launch missiles at targets in Libya. The WPR excepts “deployments which relate solely to supply, replacement, repair, or training” from its provisions. However, the continued use of UAVs in an offensive capacity clearly does not fall into this category.

The Obama administration’s intervention in Libya, under the auspices of NATO, violated the WPR, as we have explained above. We must, therefore, reevaluate the errors made by the Obama administration’s lawyers who sanctioned the NATO bombing campaign in Libya, in spite of the clearly defined principles of the WPR, principles the Libya campaign so flagrantly flouted.

1 “Remarks by the President in Address to the Nation on Libya,” National Defense University, Washington, DC, March 28 2011. http://www.whitehouse.gov/the-press-office/2011/03/28/remarks-president-address-nation-libya

2 Rogers, Simon “NATO operations in Libya: Data Journalism Breaks Down Which Country Does What,” in The Guardian DataBlog: http://www.guardian.co.uk/news/datablog/2011/may/22/nato-libya-data-journalism-operations-country

3 Schmitt, Eric “NATO Sees Flaws in Air Campaign Against Qaddafi,” in The New York Times, 4/14/2012.

4 “United States Activities in Libya,” available at: http://www.washingtonpost.com/wp-srv/politics/documents/united-states-activities-libya.html

5 As reported in Sonmez, F. “Boehner: Obama’s Libya report ‘doesn’t pass the straight-face test’,” The Washington Post, 6/6/2011.

6 As reported in Savage, C. “2 Top Lawyers Lost to Obama in Libya War Policy Debate,” The New York Times, 6/17/2011.