The Patriot Post® · Above the Law

WASHINGTON – The U.S. intervention in Libya’s civil war, intervention that began with a surplus of confusion about capabilities and a shortage of candor about objectives, is now taking a toll on the rule of law. In a bipartisan cascade of hypocrisies, a liberal president, with the collaborative silence of most congressional conservatives, is traducing the War Powers Resolution.

Enacted in 1973 over President Nixon’s veto, the WPR may or may not be wise. It is, however, unquestionably a law, and Barack Obama certainly is violating it. It stipulates that a president must terminate military action 60 days after initiating it (or 90, if the president “certifies” in writing an “unavoidable military necessity” respecting the safety of U.S. forces), unless Congress approves it. Congress has been supine and silent about this war which began more than 70 days ago.

All presidents have resented the WPR but have taken care to act “consistent with” its 48-hour reporting requirement. So on March 21, two days after the administration took the nation to war in Libya, Obama notified Congress of this obvious fact, stressing that U.S. operations would be “limited in their nature, duration, and scope” in the service of a “limited and well-defined mission.” Months ago, before it metastasized into regime change, the “well-defined” mission was to protect civilians.

In his March 28 address to the nation, Obama said “the United States will play a supporting role.” But the WPR does not leave presidential war-making utterly unrestrained if it is a “supporting role.”

On April 1, a Justice Department memorandum devoted many words to refuting what no one is disputing, that presidents have the power to initiate military action without Congress’ permission. The WPR assumes this with its 48-hour and 60- and 90-day deadlines. The memorandum reaches the conclusion the president wants by arguing as follows: By allowing U.S. involvement in hostilities to continue for 60 or 90 days, Congress “signaled” that it considers congressional authorization “most critical” for “major, prolonged conflicts” such as Korea and Vietnam.

But Congress did not “signal” this. It stipulated deadlines.

After 60 days, on May 20, Obama wrote to congressional leaders noting that since April 4, U.S. “participation” has involved “non-kinetic support” (intelligence, logistics, refueling) – but also decidedly kinetic attacks on Libyan air defenses and other targets of “the NATO-led” forces. He said U.S. support is “crucial” but “we are no longer in the lead.”

This is meretricious. We are not conspicuously leading this war by committee, aka NATO, but NATO would not act without us, and absent U.S. assets, the Libyan campaign could not continue.

Sen. Richard Lugar – former chairman of and currently ranking Republican on the Foreign Relations Committee – normally is as placid as an Indiana meadow, but in a tart May 23 letter to Obama, Lugar charged that Obama’s commitments to consult with Congress and act “consistent with” the WPR “have not been fulfilled.” Lugar said the administration recently “canceled without explanation” a committee briefing on Libya by the vice chairman of the Joint Chiefs of Staff, and declined the committee’s request that a Defense Department official testify at another hearing – where the one administration official who did appear, from the State Department, “declined to answer questions about our military operations in Libya on the ground that such questions would be more appropriately answered by the Defense Department.”

Stonewalling is, perhaps, prudent when policy is ludicrous. It is, however, intolerable in the third month of a war that Obama said would involve days, not weeks. And as Lugar said with notable understatement, U.S. operations “have assumed a different character than you suggested when you announced the decision to initiate them.” Obama has made a perfunctory request for congressional approval of this war, but clearly will proceed without it.

Liberals are situational ethicists regarding presidential war-making: Imagine their comportment if Obama’s predecessor – who got congressional authorization for his uses of force – had behaved as Obama is doing regarding Libya. Most conservatives, who preen about their commitment to keeping government on a short leash, seem anesthetized by the administration’s sophistries.

“No president,” says Sen. John McCain, “has ever recognized the constitutionality of the War Powers Act and neither do I. So I don’t feel bound by any deadline.” Oh? No law is actually a law if presidents and senators do not “recognize” it? Now, there is an interesting alternative to judicial review, and an indicator of how executive aggrandizement and legislative dereliction of duty degrade the rule of law.

© 2011, Washington Post Writers Group