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Latest on Obama’s War Powers Act Workaround

by Marian Wang
ProPublica, Libya, A History: The Country, The Food, The Dictator

More evidence emerged this weekend that could inflame what’s become a growing controversy about the legitimacy of U.S. operations in Libya. 

We’ve been following how the Obama White House—and other administrations before it—have sidestepped the War Powers Act. As we noted, the law is supposed to limit how long a president can continue military engagements without congressional approval. The administration last week argued that the United States was playing a supporting role in the NATO-led mission in Libya and that its limited involvement did not rise to the level of “hostilities” that would require approval under the War Powers Act. (Read our earlier explainer.)

As it turns out, congressional critics weren’t the only ones who didn’t buy the Obama administration’s legal analysis. Top lawyers in the Pentagon and Justice Department also disagreed and were overruled, reported the New York Times on Saturday:

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 United States military’s activities in the NATO-led air war amounted to “hostilities.”

It’s common for presidents to look for ways around the War Powers Act. As we noted, one president after another has questioned its constitutionality in the nearly 40 years since its enactment. But in developing his own argument around the law, Obama took the rare step of overruling the Office of Legal Counsel, according to the Times:

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

White House spokesman Jay Carney said last week that President Obama was personally involved in formulating the analysis and that he “worked with White House Counsel and his team.” President Obama ultimately sided with the argument advanced by White House counsel Robert Bauer and State Department legal adviser Harold Koh, according to the Times.

“We do not expect every person to agree with this,” Carney told reporters. “We believe that it is accurate and sound legal analysis.”

A Justice Department spokesman told the Times that the views of its lawyers “were heard, as were other views, and the president then made the decision as was appropriate for him to do so.”

Sunday marked the 90th day of the United States’ military involvement in Libya—a day that was punctuated by NATO’s admission that one of its airstrikes missed its target andmay have killed civilians

Disagreement over the War Powers Act has divided lawmakers, including those who support the operations in Libya. 

As we’ve noted, House Speaker John Boehner, who has said the United States has a “moral obligation” to stand with the Libyan people, hasn’t always been consistent about whether the president is in violation of the War Powers Act. While Boehner has criticized the White House for not abiding by the law, he has also previously questioned the law’s constitutionality.

The Los Angeles Times reports today that the controversy is causing a rift within Republican ranks, as Sens. John McCain and Lindsay Graham openly criticized their own party over the weekend for using partisanship as a wedge on an issue where there’s no real policy disagreement.


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