constitutional law attorney and political and legal blogger for Salon.com.
The New York Times recently broke the story that President Obama rejected the views of top administration lawyers when he decided he had the legal authority to continue U.S. military participation in the war in Libya without congressional authorization. Obama continues to face congressional opposition to the ongoing Libya attack. Republican House Speaker John Boehner has called on the White House to further clarify the legal basis for the war in Libya or face a cutoff of war funds. Last week, a bipartisan group of lawmakers filed a lawsuit accusing President Obama of violating the War Powers Act of 1973. To examine the legal dimensions of U.S. military intervention, we speak with Glenn Greenwald, a constitutional law attorney and political and legal blogger for Salon.com. “The idea that presidents can start wars on their own, without any congressional authorization, violates not just the law but the Constitution,” Greenwald said. “In theory, when the president violates the law and the Constitution, that’s an impeachable offense. At the same time, we’ve set a very low standard for our tolerance of rampant presidential law breaking.” [includes rush transcript]
AMY GOODMAN: The New York Times reported Saturday President Obama rejected the views of top lawyers at the Pentagon and Justice Department when he decided he had the legal authority to continue American military participation in the air war in Libya without congressional authorization.
The Obama administration continues to face congressional opposition to the ongoing Libya attack. On Thursday, Republican House Speaker John Boehner called on the White House to further clarify the legal basis for the war in Libya or face a cutoff of war funds.
HOUSE SPEAKER JOHN BOEHNER: The White House says there are no hostilities taking place. Yet we’ve got drone attacks underway. We’re spending $10 million a day. We’re part of an effort to drop bombs on Gaddafi’s compounds. I don’t know — I just — it doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities. Listen, it’s been four weeks since the President has talked to the American people about this mission, and I think it’s time for the President to outline to the American people why we are there, what the mission is, and what our goals are, and how do we exit this.
AMY GOODMAN: That was House Speaker Boehner on Thursday. But on Sunday, Republican Lindsey Graham of South Carolina was one of two influential senators — the other, John McCain — who said they oppose any effort by House Republicans to cut funding for U.S. participation in the Libya military mission.
SEN. LINDSEY GRAHAM: The War Powers Act is unconstitutional, not worth the paper it’s written on. It requires congressional approval before the commander-in-chief can commit troops after a certain period of time, and it would allow troops to be withdrawn based on the passage of a concurrent resolution never presented to the president. So I think it’s an infringement on the power of the commander-in-chief.
The President has done a lousy job of communicating and managing our involvement in Libya. But I will be no part of an effort to defund Libya or to try to cut off our efforts to bring Gaddafi down. If we fail against Gaddafi, that’s the end of NATO. Egypt is going to be overrun. And the mad dog of the Mideast, Ronald Reagan called Gaddafi, if he survives this, you’re going to have double the price of oil that you have today, because he will take the whole region and put it into chaos. And I will be — I won’t be any part of that. So, from my Republican point of view, the President needs to step up his game with Libya, but Congress should sort of shut up and not empower Gaddafi.
AMY GOODMAN: Republican Senator Lindsey Graham speaking on NBC’s Meet the Press Sunday.
Last week, a bipartisan group of lawmakers filed a lawsuit accusing President Obama of violating the War Powers Act of 1973, which allows 90 days for a president to notify Congress. The U.S. military intervention in Libya reached its 90th day yesterday — that’s Sunday.
To talk about the legal dimensions of U.S. military intervention, we’re joined via Democracy Now! video stream from Rio de Janeiro, Brazil, by Glenn Greenwald, constitutional lawyer and political and legal blogger for Salon.com.
Glenn, talk about the New York Times revelation this weekend that top administration lawyers had advised President Obama that he shouldn’t be violating the War Powers Act.
GLENN GREENWALD: It’s pretty extraordinary, because the President, last week, in the face of growing controversy, came out and made this absurd claim that the War Powers Resolution doesn’t apply to the conflict in Libya because there is no U.S. participation in, quote, "hostilities," which is the language that statute uses. And, of course, it is absurd on its face, given that we are involved in an effort to kill the leader of a foreign country, to destroy its military. We have our armed forces stationed in that country, in terms of air attacks and the like and the use of drones.
And what this New York Times article revealed is that it isn’t only commentators across the political spectrum who are saying that that interpretation is absurd, but also the President’s attorney general, Eric Holder, the general counsel of the Department of Defense, which is usually renowned for being quite hawkish and pro-war, and most significantly, the head of the Office of Legal Counsel, which is the agency within the Justice Department that’s designed to coordinate all of the different legal opinions within the administration and essentially pronounce the view that’s binding on the executive branch of the president’s authority. And while the president does have the power, theoretically, to override the conclusions of the Office of Legal Counsel, it’s extraordinarily rare, as the New York Times called it, for that to happen. It’s very hard to even find examples where that took place.
And so, what you had here is really an end run around by President Obama to cherry-pick lawyers. He points to his own White House counsel, who’s a longtime political operative — and that position, the White House counsel, is known for being very subservient to the president — and a low-level position in the State Department, the legal adviser, Harold Koh, who agree with him. But the actually authoritative and top legal positions in the administration are all lined up against him, and yet he’s disregarding it and saying that he has the power to wage this war without congressional approval.
AMY GOODMAN: Explain the 60-day versus 90-day rule. From the New York Times, "the Libya campaign was not covered by a provision of the War Powers Resolution that requires presidents to halt unauthorized hostilities after 60 days."
GLENN GREENWALD: Right. Well, what the War Powers Resolution says is that if — that a president can engage in a war — and let’s be clear about one thing. There is a real debate about whether or not that 60-day period even applies to Libya at all, given that the War Powers Resolution allows — [no audio]
AMY GOODMAN: We’re talking to Glenn Greenwald in Brazil, so we may have occasional hiccups in that audio. Continue, Glenn.
GLENN GREENWALD: OK. So, the War Powers Resolution essentially says that the president can wage war for 60 days, when there is the national security of the United States that’s at risk. That isn’t even the case in Libya. So there’s a strong argument to make that he didn’t even have the 60-day period, to begin with.
But at the very most, what the War Powers Resolution says is that presidents can deploy the military into hostilities for a period of 60 days without Congress, and if Congress doesn’t approve of the deployment within 60 days, he has to wind up the deployment within the next 30 days. So he essentially has a 90-day period of time in which to conduct a war without Congress. And as you just indicated, that 90-day period has ended. The 60-day period ended a month ago without any congressional action.
AMY GOODMAN: You have this unusual situation where Republicans and Democrats are joining for or against Obama, right? You have Congressmember Kucinich joining with other Republicans and Democrats suing Obama, and then you have Lindsey Graham speaking out on behalf of President Obama.
GLENN GREENWALD: Well, what’s interesting is, is that when it comes to President Obama’s foreign policy and his terrorism policy, his top allies for the last two years, his most significant allies, have been Republicans. And that’s not hard to understand. There’s much more support, for instance, for the war in Afghanistan among Republicans than there is among Democrats. The same is true for many of his policies continuing Bush-Cheney terrorism and civil liberties assault. And so you’ve seen, continuously, people like Lindsey Graham and John McCain more supportive of President Obama’s foreign policy than you have Democrats.
But what you have now is interesting because you have an enormous number of Democrats and a lot of Republicans who are not only opposed to the war in Libya, but more so opposed to the idea that presidents have the authority to start wars without any whiff of congressional approval or democratic consent. And these Democrats and Republicans tend to be the rank and file of both parties, and yet the leadership of both parties — the Pelosi-Hoyer leadership in Democrats and the Boehner-Cantor leadership in the Republicans — are lined up behind the President and have essentially been trying to do everything possible to prevent Congress from impeding the war. So it’s one of these rare issues where you don’t have the breakdown among left and right or Democratic and Republican; you have the breakdown of rank-and-file members of Congress versus the party leadership of both parties, and both parties’ leaderships are lined up behind the President, and it’s the rank and file trying to apply the law and demand that he be held accountable under the Constitution for getting congressional approval before starting a war.
AMY GOODMAN: By your analysis, do you consider this an impeachable offense, Glenn Greenwald?
GLENN GREENWALD: Well, I mean, anytime the president violates the law in a significant way, impeachment is supposed to be one of the leading remedies. So I think the President is clearly violating not only the War Powers Resolution, but also the Constitution. Article I, Section 8, assigns the war-making power to Congress, not to the executive. And even executive-power-revering jurists like Antonin Scalia have said that Article II, the Article II power that makes the commander — the president the commander-in-chief, really means nothing more than, when there’s a war that starts, the president is the top general. He directs how the war is prosecuted. But the idea that presidents can start wars on their own, without any congressional authorization, violates not just the law but the Constitution. So, sure, in theory, when the president violates the law and the Constitution, that’s an impeachable offense. At the same time, we’ve set a very low standard for our tolerance of rampant presidential law breaking. If George Bush and Dick Cheney weren’t impeached for their rampant crimes, it’s hard to see Obama being impeached for this.
AMY GOODMAN: Glenn, talk about President Obama as compared to President Bush.
GLENN GREENWALD: Well, there are certain things that President Bush did that made him justifiably notorious that President Obama hasn’t done, the leading one, for example, being authorizing a regime of torture. That’s probably the historic low of the United States over the past several decades. And the fact that President Obama withdrew the authorization for that torture regime, although it had ended at the time he was inaugurated, is an important distinguishing feature between the two that certainly redounds to President Obama’s advantage.
At the same time, there are numerous other aspects of the Bush presidency that made it notorious that Obama has continued. The idea that you can imprison people in cages for life without any due process, something that Obama, from the start, has continued. The idea that you can invoke secrecy as a means of shielding presidential law breaking from judicial review, which is to place presidents beyond the rule of law, something that they’ve both done.
But in this case, it actually is interesting because, whatever you want to say about the wars that President Bush started in Afghanistan and Iraq, at least they got congressional approval for each of those. By contrast, not only did President Obama start a new war in Libya without any congressional authority, and continues to refuse to seek that authority, even in the face of growing demands that he do so, he has also escalated the U.S. bombing campaign in Yemen and in Pakistan, certainly the former of which is without a shred of congressional authority, as well.
And so, while it’s very difficult to say — here’s President Obama, here’s President Bush — who’s worse on the civil liberties and constitutional and legal realm, there are definitely areas — definitely areas — in which President Obama has surpassed President Bush in terms of abuses. Starting wars without Congress is one of them. The New York Times editorial page just yesterday denounced the Obama administration for going even further than the Bush administration went in trying to unleash the CIA — the FBI, rather, in terms of how it can investigate American citizens without oversight or due process. And there are definitely areas where Obama has — significant areas where Obama is substantially worse than George Bush was in these realms. And given that Obama ran on a platform of reversing these trends and yet in many significant cases has accelerated them, that ought to be very disturbing to everyone.
AMY GOODMAN: I wanted to play a clip of this interview from the PBS NewsHour, Senate Majority Leader Harry Reid saying he supports the President’s view.
SEN. HARRY REID: The War Powers Act has no application to what’s going on in Libya.
JIM LEHRER: None?
SEN. HARRY REID: I don’t believe so. You know, we did an authorization for Afghanistan. We did one for Iraq. But we have no troops on the ground there, and this thing is going to be over before you know it anyway. So I think it’s not necessary.
AMY GOODMAN: "Over before you know it." Glenn Greenwald?
GLENN GREENWALD: Right. Well, of course, the idea originally was that this would be a matter of only weeks, not months. The idea was that we would do nothing other than create a no-fly zone to protect civilians in a couple of places in Libya. And that has wildly morphed into what is clearly an effort to kill Gaddafi, to change the regime of Libya, and then to reconstruct the Libyan government in a form that we like better.
But what’s particularly dishonest about Harry Reid’s comment is that if you read the War Powers Resolution, it says nothing about troops on the ground. What it says is that any time American forces are deployed into hostilities, congressional authorization is required. So it’s not surprising that Harry Reid, being a good, loyal, dutiful Democrat, is defending Barack Obama’s law breaking. Republican leaders in the Congress did the same thing continuously when George Bush was president. But what is a little surprising is that he’s so poor in the way that he does it, because what he’s saying about the War Powers Resolution is completely false, and what he’s saying about the war in Libya — it will be "over before you know it" — is even more false, given that it’s already dragged on for much longer than was originally anticipated, and there’s really no end in sight.