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Decision to attack Libya leaves some in Congress feeling shut out

It's a new military campaign but an old question: Does the president need congressional approval when embarking on a military campaign?

March 22, 2011|By James Oliphant, Washington Bureau
  • Reps. Dennis Kucinich (D-Ohio), left, and Ron Paul (R-Texas), among others, have expressed concerns about the constitutionality of President Obama's order to launch a military strike against Libya.
Reps. Dennis Kucinich (D-Ohio), left, and Ron Paul (R-Texas), among others,… (AFP / Getty Images )

Reporting from Washington — President Obama's sudden and aggressive move to launch a military strike against Libya has some in Congress feeling frozen out of the picture, complaining that the administration has run an end-around past their authority to declare war.

"For the Pentagon to deliberately circumvent congressional authority sets a new precedent for war powers authorization and sends the message to the world that American democracy is deeply dysfunctional," Rep. Mike Honda (D-Calif.) complained Monday.

Photos: U.S., allies launch attacks in Libya

The debate over whether the president needs a congressional imprimatur to conduct a military campaign is an old one, but the wars in Afghanistan and Iraq — and now the Libyan action — have some in Congress looking to assert their authority.

"We have been on sort on auto pilot for almost 10 years … now in terms of presidential authority in conducting these types of military operations absent the meaningful participation of the Congress," Sen. Jim Webb of Virginia, a former Secretary of the Navy, told MSNBC.

Under the Constitution, Congress has the power to formally declare war, but the president serves as commander-in-chief with operational control of the military and the mandate to protect the nation. The tension between the two branches has existed in the modern era ever since the Korean War, which, like the Libyan incursion, was authorized by a United Nations Security Council resolution and never certified by Congress.

Members of Congress on the left and right, including figures such as Democratic Reps. Dennis Kucinich of Ohio and Maxine Waters and Barbara Lee of California, as well as Republicans such as Reps. Justin Amash of Michigan and Ron Paul of Texas, have expressed concerns about the constitutionality of Obama's actions.

In 2001 and 2002, Congress approved resolutions supporting military actions in Afghanistan and Iraq, respectively, but came short of a formal declaration of war.

Sharon Bradford Franklin, senior counsel to the Constitution Project, an advocacy group in Washington, maintained that under the Constitution, Obama should still seek congressional approval, as President George W. Bush did for Afghanistan and Iraq, even though the military offensive is already underway.

"The use of force abroad needs to be authorized by Congress," she said.

But the White House may not see it that way.

In the wake of Vietnam, Congress passed the War Powers Act, which was an attempt to curb presidential authority to conduct military actions by requiring the president to seek congressional approval within a fixed period of time after commencing such an action. But its legality has always been in question.

The act requires Obama to notify Congress of military action within 48 hours, and Monday, Obama did just that. But in a letter to congressional leaders Monday, Obama, like other commanders-in-chief before him, specifically declined to recognize the act's supremacy over the executive branch while asserting his constitutional authority to launch the assault.

With regard to missile strikes launched this weekend against Moammar Kadafi's anti-aircraft batteries, Obama wrote: "I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as commander in chief and chief executive.

"I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action."

Obama wrote "consistent" with the War Powers Act, not "pursuant" to it. It's a fine legal distinction, but for experts on the constitutional separation of powers, an important one.

As a result, the only real leverage Congress has in this arena is the power of the purse. Only it can appropriate money to support the Armed Forces.

Absent any formal ability to make the U.S. change course in Libya, some members of Congress, especially Republicans, want answers. They want the president to address how American involvement in Libya's internal affairs is consistent with U.S. interests — and whether the goal is indeed to remove Kadafi from power or more simply to prevent the slaughter of Libyan citizens.

Obama seemed to muddle the issue for some Monday in Santiago, Chile, when he said it is "U.S. policy that Kadafi needs to go." But the United Nations resolution under which the U.S. and its allies are operating doesn't mandate regime change, and the White House has maintained that toppling Kadafi was not a goal of the missile strikes.

Rep. Richard Lugar (R-Ind.), the top Republican on the Senate Foreign Relations Committee, said the president needs to do a better job of outlining the administration's objectives in Libya.

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