Legalizing the Libya mission

This week, House Speaker John A. Boehner (R-Ohio) wrote a letter to President Obama warning him that he would be in violation of the War Powers Resolution unless Congress approved the U.S. mission in Libya by the weekend. The letter may have involved some partisan gamesmanship, but the speaker was right on both law and policy, and the president’s response Wednesday was unsatisfactory.

The War Powers Resolution, enacted over President Nixon’s veto in 1973, says that the president must obtain congressional authorization for a military action within 60 days (extendable to 90) or withdraw U.S. forces. The law defines military action to include situations in which U.S. forces are introduced “into the territory, airspace or waters of a foreign nation.” The air raids in Libya clearly fall within that definition, even though sorties lately have been carried out by other NATO countries.

Nevertheless, the administration is now arguing that the War Powers Resolution doesn’t apply because the United States isn’t involved in “hostilities.” Supposedly this is the case because U.S. ground troops aren’t engaged and because other NATO countries have taken over airstrikes. Those arguments, however, are specious.

Although presidents of both parties have had constitutional qualms about the War Powers Resolution, it provides a sensible balance between the prerogatives of the commander in chief — including the need to respond forcefully to attacks and emergencies — with Congress’ constitutional power to declare war. That is particularly true of the law’s deadlines for congressional action.

Sens. John F. Kerry (D-Mass.) and John S. McCain (R-Ariz.) have been working on a measure that would provide congressional support for the Libyan mission while requiring greater consultation. We have been wary of the Libyan mission from the start, but if it is to continue, it must be with congressional support. If Congress does pass legislation, it should be carefully circumscribed to approve only the air attacks on Libya and not to open the door to U.S. ground troops in that country, a prohibition already contained in the U.N. Security Council resolution authorizing the Libyan operation. It also should specify that the purpose of the operation is the one identified by the United Nations: the protection of civilians

Obama shouldn’t have left it to Congress to ensure that this operation is grounded in the rule of law. Three months into the Libya campaign, he should have had enough confidence in his policy to submit it to the House and Senate. Instead, he has sought refuge in legal obfuscations.