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Libya: A major test case for Barack Obama

May 21, 2011

The participation of the United States in the International Coalition's devastation of Libya is taking a new direction that raises interesting legal issues to test President Barack Obama's resolve. Not only that. A legal conundrum stares him right in the face and how he handles it will shape the path for him as he prepares to approach the electorate for a renewal of his mandate at the 2012 polls.

The legal conundrum is not complicated but it certainly speaks volumes. President Obama is certainly pitting himself against the very legal framework that he relied on to legitimize the US' involvement in the Libyan crisis. He is on a collision course with those who are quick to claim that the continued participation of the US in the Libyan conflict at the end of 60 days without Congressional backing is a serious violation of the War Powers Resolution of 1973.

In a report published on Friday, May 20, The New York Times reported that the Obama administration appeared to ignore the statute requiring hostilities to cease after two months if Congress had not authorized them to continue. The report quoted the War Powers Resolution of 1973, which says that a president must terminate military operations 60 days after notifying Congress that he had introduced armed forces into actual or imminent hostilities. The Libyan operation reached that deadline on Friday.

But Pentagon and military officials said the United States' participation in the Libyan mission was going forward unchanged. That includes the intermittent use of armed Predator drones to fire missiles at Libyan government forces, as happened on Thursday and Friday, they said.

Whether NATO persists in its bombardment of Libya or not, the legality of the US' participation in that effort is being questioned and challenged; and Obama faces a serious legal problem that may have dire consequences for him.

Mindful of a violation of that law, he has taken an initial action to reach out to Congress in an apparent justification for not obeying that law. As The New York Times report had it, the White House released late on Friday a letter from him to Congressional leaders defending the Libya operation. While he did not directly ask for a resolution authorizing the action or concede that it was necessary, he expressed support for the idea of a legislative endorsement.

Part of what he wrote in that letter said “Congressional action in support of the mission would underline the U.S. commitment to this remarkable international effort… Such a resolution is also important in the context of our constitutional framework, as it would demonstrate a unity of purpose among the political branches on this important national security matter.”

As noted by The New York Times report, while Congressional leaders have signaled little institutional interest in enforcing the resolution, there are signs that a political controversy is starting to pick up.

It said that on Wednesday, six Republican senators sent a letter to Mr. Obama noting the imminent deadline “for you to terminate the use of the United States armed forces in Libya.” They asked “whether you intend to comply with the requirements of the War Powers Resolution.”

Then, on Thursday, Representative Howard P. McKeon of California, the Republican chairman of the House Armed Services Committee, sent a similar letter to Mr. Obama stressing that the country was about to reach the War Powers Resolution deadline, which he portrayed as a “critical juncture.”

And on Friday, the American Civil Liberties Union also wrote to Mr. Obama expressing its “profound concern” that he was about to violate the War Powers Resolution, and arguing that he had no legal authority to use military force in Libya.

These enquiries are not for their own sake; they are clear indications of the disquiet that the violation of this law has stirred up. As reported by The New York Times, the Obama administration officials offered no theory for why continuing the air war in Libya in the absence of Congressional authorization and beyond the deadline would be lawful. The newspaper, however, quoted Jack Goldsmith, a Harvard law professor who led the Justice Department's Office of Legal Counsel in 2003 and 2004, as portraying that it as a significant constitutional moment.

“There may be facts of which we are unaware, but this appears to be the first time that any president has violated the War Powers Resolution's requirement either to terminate the use of armed forces within 60 days after the initiation of hostilities or get Congress's support,” Mr. Goldsmith said.

The newspaper said The Justice Department did not respond to a question about whether the 31-year-old memorandum remains in effect. But it alluded to a 1980 opinion by the Justice Department's Office of Legal Counsel, which concluded that the 60-day limit was constitutional. (The law allows presidents to extend the deadline by 30 days if necessary to protect the safety of forces as they withdraw, which does not appear to apply to an air campaign.). “The practical effect of the 60-day limit is to shift the burden to the president to convince the Congress of the continuing need for the use of our armed forces abroad,” the 1980 memorandum says.

Thus, The Obama administration has argued that Mr. Obama did not need Congressional permission to deploy forces to Libya, saying that a president may order forces into limited military engagements on his own if he decides it is in the national interest, and that the NATO-led campaign in Libya is such a conflict.

These claims may seem to be defensible for now but they are likely to be debunked by stronger opinions if the issue is taken up later by those who see things differently. In that sense, President Obama will have tough issues to handle within the context of this law. Until that time comes, he may insist on maintaining the US' presence in the Libyan campaign. The Libyan case is, however, different because at the end of the 60-day period, the US isn't withdrawing its forces. Thus, the open-ended authorization given by the 1980 memorandum doesn't apply. Obama is in complete violation of the War Powers Resolution of 1973 and must brace up for the barrage of criticisms and pressure to fall back in step.

Whatever relief he gets from this situation will be short-lived. It will not offer the long-term authorization that he needs to retain the US forces in the Mediterranean indefinitely to continue participating in the Libyan campaign. Critics will soon begin calling for a definitive timetable, which will challenge his authority. Such a timetable will be expected to give clear details on how NATO hopes to achieve its objectives and that's when other problems will crop up. As of now, NATO's only option is the costly military one. There is even no talk of an exit strategy.

Sooner than later—and especially if the stalemate in Libya persists—the public will likely wade into the debate and that's when the heat will be turned on Obama to either withdraw the US forces from NATO's campaign of devastation in Libya or to push for the ultimate, which is the assassination of Gaddafi and those henchmen responsible for the running of the Libyan government to end the military campaign. The latter option will be the last blow to oust Gaddafi from office and push the rebels on to assume control over the country.

Even then, that option will not resolve the Libyan crisis in its totality. The situation in Libya will take a very long time to stabilize; but by then, the International Coalition would have wound its operations and pulled its forces from the area to leave the new Libyan administration to a fate that it didn't take in its own hands, in the first place.

As the events unfold from this point onwards, we will see how President Obama manages to wiggle his way out of this legal maze. Even if he does so, the International Coalition's tasks wouldn't have been completed. Solving the Libyan crisis demands more than what we've had from the Coalition. Now that other political and legal issues associated with it are cropping up to add a different complexion to the problem, I hope that the scope will be widened for better options to be used. Military strength alone can't solve the Libyan crisis.

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Disclaimer: "The views/contents expressed in this article are the sole responsibility of the author(s) and do not neccessarily reflect those of Modern Ghana. Modern Ghana will not be responsible or liable for any inaccurate or incorrect statements contained in this article." © Michael J.K. Bokor, Ph.D.

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