Lovers of fiction, legal and otherwise, will long be feasting on the farce the Obama administration puts on before American people in whose name it pretends to govern. Now in its 14th week in what may be a perpetual run, the saga When is a War Not a War? has broadened its White House cast to include members of Congress. That, of course, is the institution charged by the Constitution with holding the president to account, something it seems unwilling to do.
In the run-up to the July 4 holiday, the U.S. Senate Foreign Relations Committee, in a vote of 14 to 5, passed a resolution authorizing the president to continue operations over Libya by U.S. warplanes and unmanned drones for up to a year, and banning the introduction of ground troops. Passage by the full Senate is expected soon. The measure is not binding. Just last week, the House, by a wide margin of 295 to 123, rejected a similar measure. [See photos of the unrest in Libya.]
Not surprisingly, Sen. John Kerry, Chairman of the Senate Foreign Relations Committee and author of the resolution, did not say what Congress would do if the administration disregarded the non-binding resolution’s ban on ground troops. Why would he, given that the purpose of his resolution was to fend off growing opposition both to the Libyan adventure and to Obama’s failure to abide by a binding resolution, known as the “War Powers Resolution”? The measure requires the president to seek congressional authorization for military operations that extend beyond 60 days. The deadline came and went with neither branch taking action.
More revealing than the resolution was the hearing Kerry convened prior to the vote on his resolution. The lead witness, State Department legal adviser Howard Koh voiced the administration’s position that the Libyan operation did not constitute “hostilities” under the War Powers Resolution. He took this view notwithstanding, as Virginia Democratic Sen. James Webb, noted, that the United States provides two thirds of the troops (under a “NATO fig leaf”), participates in bombings that kill, and pays its troops combat pay. Tennessee Republican Sen. Bob Corker termed Koh’s terminology “cute.” Days back, Speaker John Boehner said that it did not pass the “straight face test.” [Vote now: Is Obama handling the Libya crisis the right way?]
Koh seemed uncomfortable when asked about press reports that both the Justice Department’s Office of Legal Counsel and the Pentagon’s General Counsel had asserted that the president needed congressional authorization to continue the Libyan operation. Those reports suggested that Koh cobbled together his tortured opinion after the administration had gone shopping around various agencies in search of an opinion that would allow it to proceed as it wished and without authorization from the so called “co-equal” branch, Congress.
Koh declined to provide insight into debates that ensued within the administration on the matter. His refusal to raise the curtain on what talks are held within Camp Obama is understandable. That, constitutional experts could argue, would have violated the nonconstitutionally granted practice of “executive privilege,” the principle that holds presidential deliberations with advisers be kept private from other branches of government. That legislators already knew who had pressed for what, courtesy of press leaks, seemed not to be of concern to Koh. [Check out a roundup of political cartoons on the Middle East uprisings.].
More troubling was the senators’ acceptance of Kerry’s nonchalant assertion that representatives of the Office of Legislative Counsel and the Pentagon “declined” to appear before the committee. Like Koh, the heads of their divisions received Senate confirmation. As such, Congress could compel them to appear before its committees. With the president’s party in control of the Senate, the issuing of subpoenas was not in the cards—at least, not this time. It might well be in the House, where the opposition party reigns. Should those officials appear in response to subpoenas, but refuse to testify, Congress could hold them in contempt. That, of course, could bring the third co-equal branch of government into the Libyan matter, the Supreme Court.
Why any administration of either party would, by its own action, put itself in such a position baffles the mind. Sen. Richard Lugar, the ranking Republican on Kerry’s committee, spoke to the foolishness of the president’s going to great contortions to evade what the senator termed the “inconvenience” of laying out his case before Congress. He suggested that had Obama done so, he would have received authorization for his actions. Now, the senator is less certain.
Koh was on more solid ground when he stated that at hand were two issues rather than one: 1) the procedural and constitutional questions of whether the administration met its obligation to consult with Congress, and, 2) the substance of its case against Qadhafi in Libya, which he considers unique: preventing a ruthless dictator from massacring his own people. The president, who prides himself as a “constitutional law professor,” undercut his minions when he suggested that congressional dissent from the manner in which he took the nation into a “non-war” was tantamount to support for Qadhafi.
Experience has shown that those who act as if they have something to hide usually have something to hide. With Kerry having made himself what the Washington Post has termed “an adjunct member of Obama’s national security team,” it falls to the House to attempt to find out what the administration’s goals in Libya actually are, what plans it has for a post-Qadhafi regime, and how it intends to remove the dictator from office, having publicly shifted the war’s aims to achieving this result. Debt ceiling negotiations notwithstanding, the question of “when is a war not a war” and who authorizes it could be the political fight of the summer.