A remarkable purple moment has occurred regarding the president’s legal decision to define “hostilities” as not having taken place in the U.S. operations in Libya, and thus declaring that there was no need to seek congressional authorization under the War Powers Act.
Conservative Republicans and liberal Democrats don’t agree on much these days in the Congress, but President Obama’s decision has managed to bring many of them together in insisting that the president has not complied with the War Powers Act regarding Libya.
The War Powers Act did not define “hostilities.” It required a president to terminate a mission 60 to 90 days after notifying Congress that troops had been deployed into hostilities unless both houses of Congress authorize the operation to continue.
So it’s ironic that it is a liberal president and some of his top legal advisers who have resisted applying the act strictly. Instead, they straddled the issue by not challenging the constitutionality of the act, but rather, by narrowly defining the definition of the word “hostilities” so the act didn’t apply to U.S. involvement in Libya. They argued that there were no “hostilities” as that word was intended under the War Powers Act at least since April, when NATO took over the responsibility for the no-fly zone, with the U.S. shifting to primarily a supporting role, such as providing surveillance and fueling for allied war planes.
But other top legal advisers in President Obama’s administration, such as the Department of Defense general counsel, the head of the Office of Legal Counsel (usually a binding legal adviser on such issues) and Attorney General Eric HolderEric H. HolderOvernight Tech: Senate moving to kill FCC's internet privacy rules | Bill Gates pushes for foreign aid | Verizon, AT&T pull Google ads | Q&A with IBM's VP for cyber threat intel Uber leadership sticking by CEO Top Dems prep for future while out of the spotlight MORE disagreed with this narrow definition of “hostilities.” So did leading liberal Democrats in Congress, such as Illinois Sen. Dick DurbinDick DurbinGorsuch rewrites playbook for confirmation hearings Gorsuch: I'm 'sorry' for ruling against autistic student Mattis on defense budget boost: 'America can afford survival' MORE and Rep. Dennis Kucinich (Ohio).
What is unusual here is that President Obama chose to accept a linguistic legal analysis rather than a political one to thread the needle on this issue. Surely he must know that his definition of “hostilities,” excluding the U.S. shooting missiles from Predator drones or air strikes aimed at suppressing enemy air defense, is a stretch at best.
The question is, why go there? Why not, instead, go to Congress and seek authorization?
If Vietnam taught us anything, it is that a “limited” military commitment can lead to a major national commitment — such as Vietnam, in which more than 50,000 Americans lost their lives over more than 10 years without a congressional declaration of war.
On Tuesday, Sens. John KerryJohn KerryCongress, Trump need a united front to face down Iran One year ago today we declared ISIS atrocities as genocide Trump’s realism toward Iran is stabilizing force for Middle East MORE (D-Mass.), chairman of the Foreign Relations Committee, and John McCainJohn McCainFortune's 'Greatest Leaders' list includes Samantha Bee, snubs Trump McCain: Nunes's actions 'very disturbing' McCain calls North Korean leader a 'crazy, fat kid' MORE (R-Ariz.) did the right thing: They introduced a resolution, supported by leading liberal and conservative senators, that would give President Obama authority to continue limited military operations in Libya, but would require him to come back to Congress after a year to secure new authority.
President Obama is a brilliant lawyer and was advised on this issue by other brilliant attorneys.
But sometimes turning to the law to justify policy, even if the legal analysis is technically correct, isn’t the best choice.
In this case, I wish President Obama had chosen politics over the law, and gone to Congress to obtain a supporting resolution for his intervention in Libya.
He would have gotten it. And in doing so, practicing good politics rather than good law would have served him, history and the nation better.
Davis, the principal in the Washington law firm of Lanny J. Davis & Associates, which also specializes in legal crisis management, served as President Clinton’s special counsel from 1996-98 and as a member of President George W. Bush’s Privacy and Civil Liberties Oversight Board. He is the author of the book Scandal: How ‘Gotcha’ Politics Is Destroying America.