President Obama didn’t take long to answer Speaker Boehner’s letter yesterday wanting to know the source of the legal authority for the U.S. military operation in Libya. The New York Times reports that the White House has sent “a package of materials” over to Capitol Hill to explain its legal position. Two highlights: First, White House and State Department lawyers say that the War Powers Resolution is constitutional. Second, they say that the resolution does not apply to Libya.
Harold Koh, the State Department’s legal adviser, told the New York Times:
We are not saying the president can take the country into war on his own. We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.
Bobby Chesney has already posted a smart, initial analysis of the White House position. Lawyers and non-lawyers (like me) will be chewing over this one for a while. On that score, I highly recommend the blog "Lawfare."
Meanwhile, Rep. Dennis Kucinich (D-Ohio) and nine colleagues from both sides of the aisle have filed suit in federal district court in Washington, DC, against the president and secretary of defense over Libya. Kucinich and his colleagues are asking the court for “injunctive and declaratory relief to protect” the country from Obama’s decision to go to war “without the declaration of war from Congress.” That is serious language, but for reasons I have discussed before, this lawsuit isn’t going anywhere. Jack Goldsmith, who is a real lawyer, agrees.
This story is not going away. I’m in meetings tomorrow but I’ll keep up with the news as best as I can here at TWE and on my Twitter feed.