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Presidential War Powers Update: “Hostilities” = “Vietnam”?

- June 30, 2011

President Obama’s press conference yesterday dealt with an issue I’ve discussed in a series of posts  (most recently here) on this site, namely presidential war powers as they apply to the NATO military operation in Libya. He made both a legal and – less admirably – an ad hominem argument on behalf of his ability to implement American involvement without legislative authorization.

The president’s legal argument is that US support of a NATO operation, where no troops are on the ground or (he claims) likely to suffer casualties, does not reach the threshold of “hostilities” envisioned by the text of the War Powers Resolution. Therefore he does not “have to get to the question” of whether the WPR is constitutional, since it is simply inapplicable here.

Though this is a new presidential argument in being so explicitly expounded, it has been made by implication many times before in presidents’ unwillingness to invoke the WPR in what they considered “police” actions  (for instance, when Pres. Reagan authorized “imminent danger” pay for naval forces in the Persian Gulf in 1987-88 but argued “imminent hostilities,” as in the WPR, did not exist.)  Still, silence – or at least ambiguity – has its uses. It is perhaps worth recalling that the current argument was cherry-picked from various less favorable opinions, most notably from the Justice Department’s Office of Legal Counsel, normally the definitive executive branch arbiter of statutory interpretation.

And, interestingly, while the WPR does not itself define “hostilities,” the president offered his own: the Vietnam War. It was “if you’re going to start getting us into those kinds of commitments” — half a million soldiers, hundreds of billions of dollars, tens of thousands of deaths — that the WPR should kick in.  This is a rather high threshold. Libya does not meet it, of course – but then again, except for the spending levels, neither does Iraq.

The president went on to dismiss those who doubt his decision here as (a), merely interested in “politics” and (b), at least tacitly in favor of a “state sponsor of terrorist operations” against the US  and “one of the worst tyrants in the world — somebody who nobody should want to defend.”  The president went on, with some scorn, “this suddenly becomes the cause célèbre for some folks in Congress?  Come on.”

The notions that the ends justify the means — or that one’s critics do not care about morality or national security — are, again, hardly new in presidential discourse. Still, no matter the virtues of the Libyan operation, constitutional checks and balances might just qualify as a useful “cause célèbre.”

After all, as the president himself said a few minutes later, with regards to same-sex rights: “I think that principle will win out.  It’s not going to be perfectly smooth, and it turns out that the President — I’ve discovered since I’ve been in this office — can’t dictate precisely how this process moves.”