Is Obama about to break the law?

Dana Bash

Washington (CNN) -- President Obama may be on the brink of breaking the law.

At issue: The 1973 War Powers Act, which says if the president does not get congressional authorization 60 days after military action, the mission must stop within 30 days.

The president formally notified Congress about the mission in Libya with a letter on March 21, which makes Friday the 60-day deadline.

Inaction is angering lawmakers from both the left and the right who rarely agree on anything.

Rep. Brad Sherman, D-California, tells CNN he believes Obama is trying to "bring democracy to Libya while shredding the Constitution of the United States."

"He cannot continue what he is doing in Libya without congressional authorization. When a president defiantly violates the law, that really undercuts our efforts to urge other countries to have the rule of law," Sherman said.

Sen. Rand Paul, R-Kentucky, concurs.

"You could say, 'Well, we have a good president, he'll do the right thing.' Well, someday you may have a president who does the wrong thing, and that's why you have rules, because you can never count on people being good people," Paul told CNN.

He called it "appalling" and a "terrible precedent" to engage in military action without the people's representatives -- Congress -- debating it.

To be sure, presidents in both parties often ignored another part of the War Powers Act -- that the commander-in-chief should get congressional approval before any military action.

Still, in recent years, President Bush did seek and receive congressional authority for Afghanistan and Iraq prior to launching those missions.

But it is virtually unprecedented for a president to continue a mission beyond 60 days without a resolution from Congress.

"Make no mistake: Obama is breaking new ground, moving decisively beyond his predecessors," Yale law professors Bruce Ackerman and Oona Hathaway wrote this week in the Washington Post.

The only thing that comes close is President Clinton's military effort in Kosovo.

He failed to get congressional approval before the 60-day deadline was up. His administration argued that Congress had effectively authorized the mission by approving money for it, and the Kosovo conflict lasted 78 days.

The Obama administration doesn't have that option with Libya, because the Pentagon is using existing money. Congress never specifically funded the mission.

Now, the administration is trying to figure out what to do.

"We are actively reviewing our role going forward. Throughout, the president has been mindful of the provisions of the War Powers Resolution," Deputy Secretary of State James Steinberg recently testified before Congress. "He has acted in a manner consistent with it. He will continue to do so."

The War Powers Resolution passed in 1973 because of concerns about excess executive power in Vietnam. Congress approved it over President Nixon's veto.

Angry lawmakers in both parties say part of the problem now is that their own congressional leaders are not raising a stink about Obama's failure to come to Congress about Libya.

"Very few people are talking about this; they're just letting the president do whatever he wants, and I think that's Congress abdicating the rule of law and abdicating constitutional restraints that he should obey," Paul said.

Paul and five of his GOP Senate colleagues are thinking about taking this to the Supreme Court, which has never formally ruled on the constitutionality of the War Powers Act.

A spokesman for Senate Majority Leader Harry Reid suggested no urgency to force the president to comply with the War Powers Act when it comes to Libya.

"The administration has done a good job of keeping Congress informed about operations in Libya. U.S. operations appear to be limited and intermittent, but we are examining whether further Senate action is needed," said Jon Summers, Reid's spokesman.

Rep. Brad Sherman, a Democrat, says congressional leaders in both parties are letting this go and shirking responsibility because they don't want to have to take a tough vote on whether to give the president authority for military action in Libya.

"Americans are not of one mind on this, and some of my colleagues would just assume not do their job because this is a difficult part of it," Sherman said.

Some constitutional and legal experts are watching the president's moves carefully, and are preparing to say R.I.P to the War Powers Act.

Ackerman and Hathaway wrote on the same in the Washington Post op-ed:

"If nothing happens, history will say that the War Powers Act was condemned a quiet death by a president who had solemnly pledged, on the campaign trail, to put an end to indiscriminate war making."

Unchecked Executive War Power Could Slip Through the House

ACLU

Tucked inside the National Defense Authorization Act, being marked up by the House Armed Services Committee this week, is a hugely important provision that hasn't been getting a lot of attention — a brand new authorization for a worldwide war.

This stealth provision was added to the bill by the committee's chairman, Rep. Buck McKeon (R-Calif.), but has a bit of a history. It was first proposed by former Attorney General Michael Mukasey in 2008 after the Bush administration lost the Boumediene v. Bush case, in which the Supreme Court decided that federal courts would subject the administration's asserted law of war basis to hold Guantanamo detainees to searching review. An idea that may have originally been intended to bolster the Bush administration's basis for holding Guantanamo detainees is now being promoted as an authorization of a worldwide war — and could become the single biggest ceding of unchecked war authority to the executive branch in modern American history.

The current authorization of war provided the constitutional authority for the executive branch to go to war in Afghanistan. Subsequently, it has reportedly been invoked by the executive branch much more broadly to also use military force in Yemen and elsewhere, to justify torture and abuse of detainees, to eavesdrop and spy on American citizens without warrants, and to imprison people captured far from any battlefield without charge or trial.

Before Congress this week, the proposed authorization of a worldwide war goes much further, however, allowing war wherever there are terrorism suspects in any country around the world without an expiration date, geographical boundaries or connection to the 9/11 attacks or any other specific harm or threat to the United States. There have been no hearings on the provision, nor has its necessity been explained by Rep. McKeon or anyone else in Congress.

The idea that Congress is about to pass new authority for a worldwide war as we're trying to ramp down our efforts in both Iraq and Afghanistan is starting to get attention. We're hoping that the House Armed Serviced Committee, and the full House, will reconsider this troubling and dangerous provision. We'll keep you updated as this troubling provision progresses, but you can help now by telling your representative to oppose any new and expanded war authority.

Clinton To Congress: Obama Would Ignore Your War Resolutions

TPM

Update: Rep. Brad Sherman (D-CA), who asked Clinton about the War Powers Act during a classified briefing, said Clinton and the administration are sidestepping the measure's provisions giving Congress the ability to put a 60-day time limit on any military action.

"They are not committed to following the important part of the War Powers Act," he told TPM in a phone interview. "She said they are certainly willing to send reports [to us] and if they issue a press release, they'll send that to us too."

The White House would forge ahead with military action in Libya even if Congress passed a resolution constraining the mission, Secretary of State Hillary Clinton said during a classified briefing to House members Wednesday afternoon.

Clinton was responding to a question from Rep. Brad Sherman (D-CA) about the administration's response to any effort by Congress to exercise its war powers, according to a senior Republican lawmaker who attended the briefing.


The answer surprised many in the room because Clinton plainly admitted the administration would ignore any and all attempts by Congress to shackle President Obama's power as commander in chief to make military and wartime decisions. In doing so, he would follow a long line of Presidents who have ignored the act since its passage, deeming it an unconstitutional encroachment on executive power.

Other than that, the lawmaker said he learned nothing new during the classified briefing by Clinton, Director of National Intelligence James Clapper and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff.

A cross-section of Democrats and Republicans are opposed to President Obama's decision to authorize air strikes in Libya without seeking a resolution of approval or a declaration of war from Congress. Lawmakers ranging from Rep. Dennis Kucinich (D-OH) to Sen. Richard Lugar (R-IN), the top Republican on the Foreign Relations Committee, have groused about not being consulted before Obama took military action.

The War Powers Act of 1973, passed in the aftermath of the Vietnam War, puts limits on the ability of the President to send American troops into combat areas without congressional approval. Under the act, the President can only send combat troops into battle or into areas where ''imminent'' hostilities are likely, for 60 days without either a declaration of war by Congress or a specific congressional mandate.

The President can extend the time the troops are in the combat area for 30 extra days, without Congressional approval, for a total of 90 days. After that, is unchartered territory. The act does not specifically say what Congress could do if the President turns a blind eye to Congress and refuses to have his role as commander-in-chief constrained, as Presidents have routinely done.

The only options Congress would have at that point is to cut off funding for future military operations and override what would likely be a presidential veto of any such measure.

Senate Majority Leader Harry Reid (D-NV) has asked his caucus to postpone any Libya resolutions until after they receive a classified briefing Wednesday evening. Afterward, Reid said, all bets are off and Democrats can offer any type of war powers resolution they want.

"I've told my caucus, 'Come loaded with all your questions; ask questions in this classified setting. And then if in fact you want to do more legislatively, you're entitled to do it,'" Reid told reporters Tuesday. "The War Powers Act we believe is valid, is very clear, setting forth timelines."

Reid said he read sections of the War Powers Act to his caucus at a lunchtime policy meeting Tuesday.