The president immediately sent a 38-page report which arrived the next day. That report had been prepared as a result of earlier demands enacted by the Congress. The report argued that the U.S. had not been – in Libya – “in hostilities.” Lawyers for the administration stated, reported the Times, “the military mission was constrained by a United Nations Security Council resolution, which authorized air power for the purpose of defending civilians.”
The War Powers clause had been passed during the Vietnam era and vetoed by President Nixon. That veto was overridden by the Congress. The Obama administration does not contest the legality of the War Powers Resolution. A spokesman for President Obama said: “We are saying the limited nature of this particular mission is not the kind of hostilities envisioned by the War Powers Resolution.”
On June 18, The Times reported: “President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.” The Times continued, “Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the U.S. military’s activities in the NATO-led air war amounted to ‘hostilities.’ Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.”
The Times of June 11 reported: “Still the White House acknowledged the operation [Libya] has cost the Pentagon $716 million in its first two months and will have cost $1.1 billion by September at the current state of operations.”
President Obama, stated The Times, “has the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.”
Imagine what the response by Congress and the American public would have been had either President Nixon or President George W. Bush done what President Obama has done in continuing a war after the expiration of the 60-day time period permitted? Dozens of members of Congress would have denounced the president and lined up to add their names to an impeachment resolution.
Remember the public reaction during Watergate in 1973 when President Nixon ordered Attorney General Elliot Richardson to fire the Special Counsel, Archibald Cox? He refused and resigned. His deputy, William Ruckelshaus, likewise refused and resigned. Wikipedia tells us that although Solicitor General Robert Bork “believed Nixon’s order to be valid and appropriate, he considered resigning to avoid being ‘perceived as a man who did the President’s bidding to save my job.’ However, both Richardson and Ruckelshaus persuaded him not to resign, in order to prevent any further damage to the Justice Department. As the new acting department head, Bork carried out the presidential order and dismissed the special prosecutor.”
The Times of June 20 reported: “Earlier this month, Mr. Kucinich offered a resolution that called for a withdrawal of the military from the air and naval operations in and around Libya within 15 days. The measure failed (though many Republicans voted for it) only because Mr. Boehner offered an 11th-hour resolution of his own, simply to rebuke Mr. Obama for failing to seek Congressional approval. That resolution passed, 268-145.”
The Washington Times of June 4 reported: “The resolutions were non-binding, and only one of them passed, but taken together, roughly three-quarters of the House voted to put Mr. Obama on notice that he must explain himself or else face future consequences, possibly including having funds for the war cut off.”
Apparently, as a result of the president’s decision to override the legal conclusions of the Office of Legal Counsel and the Pentagon, The Times of June 20 reported, “[t]he House appears likely to vote this week on a measure that would limit financing for the American military efforts in Libya, using the chamber’s appropriations power to push back against the White House, which did not seek Congressional authorization for the mission.”
President Obama, while not commanding a majority of support for some of his policies, does have the personal approval of the American public. He is a likeable man. Nevertheless, we pride ourselves that we are a government of laws, not of men, and that no one is above the law.
Will the Democratic-controlled Senate hold President Obama to the same standard the Republican-controlled House appears prepared to do and that which the Senate undoubtedly would have done to President Bush? Will equal justice prevail in the legislative branch of our government, and will those we elected do their duty, no matter how painful it may be?
Edward I. Koch, who served as mayor of New York City from 1978 to 1989, is a partner in the law firm of Bryan Cave.
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