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June 26, 2011

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Several recent events make it appropriate and timely to begin discussing the Constitution’s allocation of war powers.  First, today marks the 100th day of Libyan bombing by NATO and U.S. forces, well after the maximum 90-day deadline for terminating the use of American military force under the War Powers Resolution (WPR).

Second, on Friday (June 24) the House refused to authorize military involvement in Libya in a symbolic vote (123 to 295), but then acquiesced in President Obama’s imperious dismissal of the WPR by refusing in a substantive vote (180-238) to cut off most, but not all, funding.  (The proposed bill contained limited exceptions for search and rescue; intelligence, surveillance, and reconnaissance; aerial refueling; and operational planning).

Finally, we now know that President Obama rejected the conclusion of the DOJ Office of Legal Counsel that military operations in Libya constituted “hostilities” under the WPR.  Instead President Obama had his own John Yoo “torture memo” moment, when he insisted on shopping around until government lawyers could be found who were willing to tell the President what he wanted to hear.

No one disputes that the WPR raises difficult constitutional issues over the proper balance between Congress’s power to declare war, and the President’s role as Commander-in-Chief.  Still, there is a basic misconception in the current debate over Libya shared by both supporters and opponents of the President.  This misconception is that, whatever your views on the constitutionality of the WPR or the merits of the Iraq War, President George W. Bush at least complied with the WPR by obtaining prior congressional approval for his invasion of Iraq.

For example, in his most recent Washington Post column (“Who takes us to war?”), Charles Krauthammer denigrates the constitutionality of the War Powers Resolution, but urges every president to have the “constitutional decency to get some congressional approval when he takes the country to war.”  He then cited President Bush as a “model for such constitutional restraint.”

In fact, the Iraq War Resolution that President Bush signed in October 2002 (Public Law 107-243) is a prime example of a President abusing his powers as Commander-in-Chief to nullify Congress’s power to declare war.  As written and proposed by the Bush White House, the original draft of the Iraq War Resolution identified three objectives:

1.   “defend the national security interests of the United States against the threat posed by Iraq”;

2.   “enforce the United Nations Security Council Resolutions” regarding Iraq; and

3.   “restore international peace and security in the region” (emphasis added).

The resolution passed by Congress and enacted into law, however, only contained the first two limited objectives, re-worded slightly as follows:

1.   “defend the national security of the United States against the continuing threat posed by Iraq”; and

2.  “enforce all relevant United Nations Security Council resolutions regarding Iraq.”

Significantly, Congress refused to grant President Bush a blank check to “restore international peace and security in the region” and removed this war aim from the final draft.  As the Iraq War proceeded, however, the first objective was achieved when Saddam Hussein was captured in December 2003.  Similarly, the second objective was achieved no later than September 2004, when the Iraq Survey Group issued its final report on the absence of weapons of mass destruction in Iraq.  At that point, the limited objectives of the war that Congress had constitutionally authorized were all met and the limited war based on those objectives was over.

From a constitutional perspective, President Bush should have declared “mission accomplished” at that point and either (i) begun withdrawing our troops from combat areas, or (ii) returned to Congress for explicit authorization of his original goal of “restor[ing] international peace and security in the region” or a similar open-ended goal like building a stable democracy in Iraq.

Instead, President Bush ignored the fact that Congress had already rejected his third objective and chose instead to act as if Congress had endorsed it, fearing no doubt that Congress would have refused a second request.  As a result, the Iraq War that continued after 2004 was never constitutionally authorized, and it was this second unauthorized Iraq war that President Bush was unprepared to fight and which the American public ultimately abandoned in the 2006 and 2008 elections.

President Obama’s legal justification for flouting the War Power Resolution – the lack of actual “hostilities” in Libya – is risible, and one wonders why he refrained from seeking congressional authorization in the early days of bombing.  Congress would doubtless have passed such a resolution, thereby giving the President political cover if the war began to drag on and became too costly and unpopular, as now appears to be happening.

It is probably too late now for President Obama to seek congressional authorization, relying instead on the “you must support the troops, now that they are fighting” argument that President Bush invoked so often and so well.  The experience of the Iraq War Resolution, however, shows that even if President Obama had obtained a formal resolution, it is easy to forget how easily such resolutions can be snubbed in practice.

Copyright © 2011 Anthony W. Hawks. All rights reserved.

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