President Obama Rejects Justice Department's War Powers Interpretation
6:00 AM, Jun 19, 2011 • By ADAM J. WHITE
When the White House announced last week that it would not comply with the requirements of the War Powers Resolution because the Libya operation does not involve "hostilities," eyebrows arched in curiosity. Many observers questioned the administration's conclusion that America's involvement in the Libya operation no longer fit within the statute's term "hostilities." (The administration's explanation is found on page 25 of this White House report.)
But even more curious was the White House's explanation of how the administration reached this conclusion. Rather than releasing a memorandum from the Justice Department's Office of Legal Counsel (OLC)—as it did at the outset of the military campaign—the administration offered no specific source for its legal conclusions. Instead, the White House's report simply stated that "the President is of the view that" the War Powers Resolution does not apply.
The New York Times's Charlie Savage—who made his name covering the Bush White House's internal debates over the Constitution and the Global War on Terror—immediately picked up on this:
Or as Jack Goldsmith succinctly put it: "This is odd." Goldsmith—who was at the center of the Bush-era OLC debates—guessed that "OLC or DOJ has problems of some sort with the Administration’s legal theory."
The speculation was short lived. Yesterday morning the New York Times confirmed that the White House's interpretation of the War Powers Resolution was, in fact, rejected by both the Office of Legal Counsel and the Defense Department:
This is an extraordinary story, for several reasons:
1. It reveals the desperate extent to which President Obama is willing to stretch his position to avoid agreeing with the modern conservative position that Congress has specific constitutional tools for limiting the president's war power—most importantly, the power of the purse, and the power to hold up executive and judicial nominations and obstruct other administration priorities—but statutes like the War Powers Act are not among them.
Rather than conceding that point—and thus flatly contradicting his own campaign rhetoric—he has adopted the strained "view" that American armed forces are not still engaged in "hostilities or ... situations where imminent involvement in hostilities" (i.e., the War Powers Resolution's triggering requirement), even though (by the White House's own characterization) U.S. strike sorties are contributing to "the suppression of enemy air defense," as well as a majority of the coalition's refueling assets.