Law and Credibility
By A.G. Noorani
A HEAD of state or government who quibbles undermines the rule of law, the norms of democratic governance and his own credibility. The president of the United States is both, head of state and government. It is particularly unfortunate that President Barack Obama should stoop to legal quibbles over his war on Libya.
He was editor of Harvard Law Review. Since Woodrow Wilson, nearly a century ago, no president was more knowledgeable in constitutional law than he. For him to claim that the brutal air attacks on Libya, targeting its leader Muammar Qadhafi, do not constitute hostilities is to carve for himself a niche in the gallery of presidents who economised with the truth.
The controversy has snowballed and involves issues that far transcend the application of the War Powers Resolution of 1973.
It obligates the president, first, to submit to the speaker of the House of Representatives as well as the president pro tempore of the Senate a report in writing setting out the circumstances necessitating the introduction, without a declaration of war, of the US armed forces into hostilities within 48 hours of their deployment [Section 4 (a)].
Next, within 60 calendar days of this report, the president shall terminate any use of the armed forces unless the Congress had declared war as it alone can under the constitution or has enacted an authorisation or extended the 60-day term [Section 5(a)].
The object was clearly to prevent presidents from waging war bypassing the Congress. Obama has done the incredible and manifestly untenable. In an elaborate 32-page report to the speaker of the House of Representatives on June 15, he has contended that he is entitled as commander-in-chief and pursuant to his foreign affairs powers to direct such limited military operations abroad even without congressional authorisation.
This is no different from his predecessor George W. Bushs dangerous doctrine of the presidents inherent powers over and above those conferred by the constitution.
Obama cites consultation with the Congress and claims that the War Powers Resolution has not been violated because Americas aerial attacks on Libya do not constitute hostilities. The reports argument is shocking in its brazenness. US operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of US ground troops, US casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterised by those factors.
The operation has cost the Pentagon $716m in its first two months and will have cost $1.1bn by September at the current scale of operations.
As candidate for the presidency, Senator Obama supported the War Powers Resolution. He said in 2007: The president does not have power under the constitution to unilaterally authorise a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
He was very critical of the legal opinion in the Bush era that there were no limits on the executives judgment, the constitution notwithstanding. It was given by the notorious John Yoo, deputy assistant attorney general in the Office of Legal Counsel for the president. He was also the author of the infamous memo on torture which justified the inhuman methods used to extract confessions.
Jack L. Goldsmith, who led the Justice Departments Office of Legal Counsel during the administration of President George W.
Bush, said the Obama theory would set a precedent expanding future presidents unauthorised war-making powers, especially given the rise of remote-controlled combat technology. The administrations theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolutions time limits.
Obamas stand outraged public opinion, especially after it became known that he had played games to secure favourable legal advice. Prof Bruce Ackerman, who teaches law at Yale, recalled in an article in The New York Times that since the 1930s, it has been the job of an elite office in the Justice Department the Office of Legal Counsel to serve as the authoritative voice on matters of legal interpretation. The approximately 25 lawyers in this office write legal opinions after hearing arguments from the White House as well as other executive branch departments.
But, after Caroline D. Krass, acting head of the Office of Legal Counsel, told the president that he had to abide by the acts requirements, the White House counsel decided to usurp the Justice Departments traditional role.
A favourable opinion was procured instead from the presidents White House counsel, Robert F. Bauer, who, unlike the head of the Office of Legal Counsel, is not confirmed by the Senate, Bauer readily opined that, despite the War Powers Act, the campaign in Libya can continue without congressional support.
On June 24, the House of Representatives rejected by 295 votes to 123 a motion to provide the authorisation. Seventy
Democrats voted against Obama. On July 5, the Senate postponed voting on a motion authorising the war.
Obama dismisses public disquiet as a fuss by members of the Congress. The fuss is unlikely to vanish.
The writer is an author and a lawyer.