[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
I know Ben Quayle suggested Politico was the worst media outlet in history, but truthfully they break a lot of interesting stories, which puts me in a bind because I want to respect Patrick’s boycott of the site, but I often want to talk about their stories. So they had an excellent article about the briefing that Hillary Clinton and Robert Gates gave, and thus the workaround today is provided by Hot Air:
[Congressional sources] said one dynamic was very clear: The administration doesn’t much care what Congress thinks about the actions it’s taken so far.
Challenged on whether Obama overstepped his constitutional authority in attacking Libya without congressional approval, Clinton told lawmakers that White House lawyers were OK with it and that Obama has no plans to seek an endorsement from Congress, attendees told POLITICO…
“If they didn’t need congressional authorization here in these circumstances, can you tell me under what circumstances you’d ever need congressional authorization if we’re going into a war? Nobody answered [that] question,” said Rep. Jerry Nadler (D-N.Y.). “The administration and its lawyers believed they had the authority under the War Powers Act.
(emphasis added) If that claim is accurate, that means that the White House’s conduct is unreal. I am honestly not sure if they are absolutely incompetent in the law, or utterly contemptuous of it.
Let me pull that apart. First, their lawyers supposedly said that this was legal, under the War Powers Act. Seriously have they read the thing? Let me quote it to you:
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to
(1) a declaration of war,
(2) specific statutory authorization, or
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
If you are going to argue that the President can do this under his inherent powers under the Constitution, that is fine. I will disagree with you, but you are within the realm of reasoned debate. But you can’t pretend that the War Powers Act covers this—you can argue that this power is inherent in the office of Commander-in-Chief, but you can’t honestly and competently claim that the War Powers Act covers this. This isn’t a foreign language. Hell, this isn’t even lawyer-code-talk. We were not in an emergency created by an attack on the United States, its territories or its armed forces when Obama started bombing Libya. It is, simply put, a lie to say it lawful under this act.
And what the President argued the other day was that this was born out of extreme necessity:
At this point, the United States and the world faced a choice. Gaddafi declared that he would show “no mercy” to his own people. He compared them to rats, and threatened to go door to door to inflict punishment. In the past, we had seen him hang civilians in the streets, and kill over a thousand people in a single day. Now, we saw regime forces on the outskirts of the city. We knew that if we waited one more day, Benghazi – a city nearly the size of Charlotte – could suffer a massacre that would have reverberated across the region and stained the conscience of the world.
Never mind that he also didn’t get Congress’ consent as things crept in that direction. I mean can’t he walk and chew gum at the same time? It took days to secure the UN resolution he thought was worth waiting for, but he couldn’t have also taken the same time to get a Congressional approval, too, as he waited for UN approval? But okay, let’s just say that Obama is a really poor planner. So then shouldn’t he get approval now?
Well, no, the story says. To quote them again, because I can’t get over it, it is so unreal:
Clinton told lawmakers that White House lawyers were OK with it and that Obama has no plans to seek an endorsement from Congress[.]
What the hell?!
Indeed, the contempt of Congress—meaning the sentiment, not the crime—is laced throughout the Politico piece. Normally I would just recommend reading the whole thing, but, well, we are trying to boycott them so let me pick out a few choice quotes. For one the vaunted briefing sucked:
Lawmakers said they weren’t told much by Secretary of State Clinton, Secretary of Defense Gates, Joint Chiefs Chairman Michael Mullen or Director of National Intelligence James Clapper that they couldn’t read in the newspaper or see on television.
And you know that story about secretly sending in covert forces on a mission that is not so secret anymore? Well…
And, as if to add insult to injury, news broke during the House briefing that Obama had already signed an order authorizing covert action in support of the rebels. When asked about it after the first briefing, House members were unaware the president had taken that action….
Clinton, approached by reporters in a Capitol hallway, refused to say why the order was not discussed in the briefing[.]
Nice, so Jake Tapper knew before Congress.
And indeed, this “pound sand” attitude toward Congress is not even consistent with the President’s asserted authority under the War Powers Act, because even if the initial start of hostilities was legal, the President can’t keep the war going for more than 62 days. Again, from the statute:
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress
(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
That report referenced above is required to be submitted within the first 48 hours, so he can extend himself at most for 92 days, max. But that 30 day extension only applies to attacks on “the United States.” Since the provision involving the initiation of hostilities differentiates between attacks on “the United States,” and attacks on “its territories or possessions, or its armed forces” that means literally nothing less than an attack on one of the
57 50 states allows for that 30 day extension. So does the President believe that this war will be done in 60 days?
During “In the Arena,” Jon Lee Anderson, staff writer for The New Yorker reporting from Benghazi, Libya, tells Eliot Spitzer that the number of opposition fighters on the front lines are fewer than anyone would think and that they are poorly armed and badly trained. Anderson says, “Effective number of fighting men, well under 1,000. Actual soldiers, who are now in the fight, possibly in the very low hundreds on the opposition side.”
Now during the Revolution our military force was pretty pitiful, too, but usually the underdog loses. That is why we call them the underdog, and why it is an inspiring movie cliché when they win. Because they usually don’t win. So we might end up blowing another hole in our deficit, with little to show for it. Nice.
I have supported the idea of intervening from the beginning. I think McCain was right to ask for intervention when he asked for it. But if in our dithering the rebels have dwindled down to a force that cannot win, then we have to fish or cut bait. We either do a full scale invasion—which I oppose—or we shouldn’t even bother.
But just having a no-fly zone (which apparently does include blowing up some tanks—huh?), is just half-assed. It’s like the great Mr. Miyagi said:
Either you karate do “yes” or karate do “no.” You karate do “guess so,” [makes squish gesture] just like grape. Understand?
Or to put it in a more Southern way, sometimes the worst place to be is in the middle of the road.
But I had been trying to put words to my concern about how this war has been run for days, and I think I finally found the best metaphor. It’s the Underpants Gnomes theory of warfare. Of course I explain the Underpants Gnome metaphor here, but this is Obama’s theory of how to win the war:
Step 1: Enforce a No-Fly Zone
Step 2: ?
Step 3: Regime Change!
So his second step is a question mark, because he is just hoping the Rebels do something to take down Qdaffy, but he has no idea what it would be, or apparently even if they are capable of doing it, with our help. I support regime change and so on, but I am against half-assing it.
Anyway, Congress has to put its foot down. At the very least he has to be censured. That should be step one. And if Obama continues to show this contempt of the separation of powers enshrined in our Constitution, it would be impeachment time. And some would say it was overdue.
[Posted and authored by Aaron Worthing.]