President Barack Obama seems hellbent on reigniting the centuries-old battle between the executive and legislative branches over which has the final say over the authorization of military force and for how long. Obama’s stubbornness and intransigence, like that of Wilson, LBJ, Nixon, and Bush 43 before him, may render his successors less, rather than more able to assert American power in defense of real and readily identifiable national security interests. Such proved the case when Congress re-asserted itself in the aftermath of previous wars the nation waged in pursuit of abstract and ill-defined objectives.
Obama’s problems began in March, when the “leader of the free world,” decided that he would lead from behind. In one of his least memorable utterances, made on a trip to Latin America, undertaken with no apparent purpose, Obama announced that the United States would imposes a no-fly zone over Libya. Days later, he handed off the waging of what his advisers now term a “non-war” to a NATO command. The initially announced goal was to prevent Muammar Qadhafi from slaughtering civilians in his country. Within hours, the administration began debating with itself over whether it sought “regime change,” with the president on both sides of that question.
With the president away, his minions found time to solicit support from the Arab League, the United Nations, and opinion writers. One significant actor it failed to consult was the U.S. Congress. (Administration spokesmen said that the co-equal branch, which has the power to authorize and fund such missions, had been “briefed.”) [Vote now: Is Obama handling the Libya crisis the right way?]
Obama advisers shrugged off press suggestions that congressional authorization was needed, insisting the operation would take “days, not months.” This was a reference to the War Powers Act’s provision requiring the president to seek such authorization should military action extend beyond 60 days. Congress, then out on one of its all-too-frequent “breaks,” made no effort to assert its institutional duties, let alone its legislative prerogatives. House Speaker John Boehner released a nondescript statement urging the president to make public his reasons for authorizing the action. It suggested no date and offered no hint of what Congress might do should its advice be ignored.
As the 60-day deadline came and went, a growing bipartisan coalition in Congress began wondering aloud what Obama had wrought, and by himself. After threatening to introduce articles of impeachment against President Obama for ordering military action without congressional authorization, Ohio Democratic Rep. Dennis Kucinich introduced a measure to block U.S. participation in the NATO-led operation within 15 days of its passage, absent congressional authorization. The measure, though defeated, attracted the votes of 87 Republicans and 61 Democrats. To fend off this more draconian action, Boehner introduced a resolution condemning the president for not seeking congressional approval and urging him to do so, absent the “or else” provision. No one doubted, least of all the president, that the speaker intended his resolution as a non-stop measure, giving supporters and opponents of Obama’s action a place to stand until all had a sense on how the Libyan campaign was proceeding. [Check out a roundup of political cartoons on the Middle East uprisings.].
With Kucinich urging the Supreme Court to hold the president in violation of War Powers Act; his team released one of the most tortured justifications of presidential action in the history of the office. State Department legal adviser, Harold H. Koh, in a strange venture into “Orwell-speak,” argued that the War Powers Act does not apply to Libya. U.S. operations there do not constitute “hostilities.” The tortured opinion came after Obama, in a break with custom, sidestepped the Justice Department’s Office of Legal Counsel, which thought otherwise. Koh’s comments should have surprised Defense Secretary Robert Gates, who had argued that no-fly zones were almost by definition military undertakings.
Not surprisingly, Boehner said that such explanations did not pass the “straight face test.” But, apparently, he does not believe it failed enough for Congress to hold hearings or use its subpoena powers to compel the administration to set forth its objectives.
This week, the action shifts to the other supine house of Congress, otherwise known as the U.S. Senate. There, Foreign Relations Chairman John F. Kerry is scrambling to fend off efforts in the House to cut off funds for “non-hostilities” in Libya. He seeks passage of a nonbinding Senate resolution that would impose a one-year limit on the operation. With ranking Republican of his committee, Richard Lugar, maintaining that Congress needs to first have a genuine debate over this new “war,” Kerry, in search of bipartisan support, has joined forces with John McCain, Lugar’s counterpart on the Armed Services Committee.
With Majority Leader Harry Reid supportive, Kerry’s measure should pass. The irony of John Kerry, who launched his career before the committee he now heads as a witness opposed to a war he termed “illegal” years before Congress passed the War Powers Act, acting as handmaiden to a resurgent “imperial presidency” will not be lost on historians. In standing by Obama, Kerry furthers the already growing divisions within his party. (Witness recent comments from Kucinich, Rep. Barney Frank, Sen. Claire McCaskill, and others.)
Kerry can do a greater service for his country and his president than the one he thinks he is providing. The man who turned Obama into a celebrity when he invited him to deliver the keynote speech before the Democratic National Convention in 2004 can tell his protégé to stop hiding behind legal fictions, ask Congress to support his actions in Libya, and allow an open debate. That is how we do things in republics.