Tuesday, June 21, 2011

More on Obama's "Not Hostilities" Dodge in Libya

The NY Times At War blog notes that
United States troops participating in the NATO-led campaign in Libya are receiving “imminent danger pay.” Does that make it harder to argue that the American military component of the mission does not rise to the level of “hostilities,” as the Obama administration contends?
The Washington Post reported on Tuesday that the Defense Department had decided in April that service-members in Libyan airspace and in the Mediterranean Sea off the coast of Libya would receive an extra $225 a month because they were in “imminent danger.” The extra pay was retroactive to the start of the intervention in March.
The report raised eyebrows because the White House has separately argued that President Obama could lawfully continue the mission beyond a 60-day deadline imposed by the War Powers Resolution for deployments into hostilities that have not been authorized by Congress because the American role in the NATO-led mission falls short of “hostilities.”
Under Defense Department regulations, to be eligible for imminent danger pay, troops have to be serving in an area where they are “subject to the threat of physical harm or imminent danger because of civil insurrection, civil war, terrorism or wartime conditions.” The Pentagon’s policy directive did not say which justification it was relying on to designate Libya such a zone.
Still, the government did cite its justification for granting a similar “danger pay” allowance to civilian employees serving on the ground in Libya like diplomats or Central Intelligence Agency officials. In a letter sent to Congress informing lawmakers of the decision to grant that allowance, the State Department specifically said the decision was “based on civil insurrection.”
Moreover, the Pentagon grants some troops extra pay under a different justification – “hostile fire pay” – that is more squarely relevant to an assessment of whether the United States is involved in “hostilities” in Libya. The administration’s legal theory has hinged in part on the idea that United States forces are not in danger of taking casualties because there are no ground troops and even though American aircraft and drones are periodically firing missiles at Libyan air defense installations and Libyan forces, they are not able to exchange fire in a serious way.
Obama's dodge is shameful . . . and now, even Eugene Robinson, one of his most consistent backers, has weighed in to say so.

Let’s be honest: President Obama’s claim that U.S. military action in Libya doesn’t constitute “hostilities” is nonsense, and Congress is right to call him on it.

And Bruce Ackerman at the NY Times makes a point to which I alluded yesterday:
IT has now been over three months since the first NATO bombs fell on Libya, yet President Obama has failed to request Congressional approval for military action, as required by the War Powers Act of 1973. The legal machinations Mr. Obama has used to justify war without Congressional consent set a troubling precedent that could allow future administrations to wage war at their convenience — free of legislative checks and balances. . . .

From a moral perspective, there is a significant difference between authorizing torture and continuing a bombing campaign that may save thousands of Libyans from slaughter by Col. Muammar el-Qaddafi. But from a legal viewpoint, Mr. Obama is setting an even worse precedent.
Although Mr. Yoo’s memos made a mockery of the applicable law, they at least had the approval of the Office of Legal Counsel. In contrast, Mr. Obama’s decision to disregard that office’s opinion and embrace the White House counsel’s view is undermining a key legal check on arbitrary presidential power.
This is a Beltway detail of major significance. Unlike the head of the Office of Legal Counsel, the White House counsel is not confirmed by the Senate — which means that the president can appoint whomever he likes. Some presidents have picked leading legal statesmen like Lloyd N. Cutler, who served both Jimmy Carter and Bill Clinton. But others have turned to personal friends to fill the office. In such cases, it is especially difficult for the White House counsel to say no to a top presidential priority on the grounds that the law prohibits it.
Mr. Bauer is not the only administration lawyer to conclude that the billion-dollar bombing campaign in Libya does not amount to “hostilities” under the War Powers Act. The State Department’s legal adviser and former Yale Law School dean, Harold H. Koh, has also taken this position. This is surprising, since Mr. Koh’s legal scholarship over the years has been highly critical of presidential overreach on matters of national security, emphasizing the importance of Congress’s constitutional powers over war and peace.
If the precedent Mr. Obama has created is allowed to stand, future presidents who do not like what the Justice Department is telling them could simply cite the example of Mr. Obama’s war in Libya and instruct the White House counsel to organize a supportive “coalition of the willing” made up of the administration’s top lawyers. Even if just one or two agreed, this would be enough to push ahead and claim that the law was on the president’s side.
Allowing the trivialization of the War Powers Act to stand will open the way for even more blatant acts of presidential war-making in the decades ahead. Congress must confront the increasingly politicized methods White House lawyers are using to circumvent established law and stop them from transforming it into an infinitely malleable instrument of presidential power.
If Congress does not act, the Constitution’s command that the president “take Care that the Laws be faithfully executed” will become nothing more than an unfulfilled hope on an old piece of parchment.

Nonetheless, those august senators John McCain and John Kerry (who surely is preparing to succeed Hillary as Sec of State in a second Obama administration - if BO can pull that one off - are jointly presenting a resolution to stop Congress from cutting off support for the Libya war.
In an effort aimed at countering a House Republican plan to defund American military operations in Libya, Senators John Kerry, chairman of the Foreign Relations Committee and a Democrat, and John McCain, a Republican, announced the introduction of a joint resolution on Tuesday authorizing the limited use of United States Armed Forces in Libya.
Under the resolution, which could be voted on as early as this week, the president is “authorized to continue the limited use of the United States Armed Forces in Libya, in support of United States national security policy interests” for one year after passage of the resolution.
So the beat goes on . . . .

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