International human rights

Controversy continues to surround President Obama’s defense of an ongoing military presence in Libya, with members of Congress and academics questioning whether Obama violated the War Powers Resolution by maintaining a military operation in Libya for more than 60 days without obtaining Congressional approval.

President Obama argued in a report to Congress last week that he was not legally required to obtain military authorization, because the military intervention did not constitute “hostilities” as the word is used in the War Powers Resolution. But ten members of Congress announced they planned to sue Obama challenging that determination, and debate in Congress is heating up over whether to authorize continued American participation, or instead pass a resolution that would require an end to combat activity.

In a video interview during the ACS 10^th Anniversary National Convention this past weekend, Ohio State University law professor Peter Shane explained his understanding of President Obama’s legal argument, and how it’s likely to fare.

“I guess my opinion based on just the one-paragraph view on that question, is that the administration has made an argument that you could probably make with a straight face. I don’t necessarily think it’s the stronger argument,” said Shane, who specializes in separation of powers issues and is the author of Madison's Nightmare: How Executive Power Threatens American Democracy.

This week, Shane told ACSblog he would now take the stronger position that the administration's argument can "just barely" be made with a straight face, in light of a subsequent New York Times report that there have been some 60 U.S. airstrikes since April.

He said during the interview:

At this point they’re arguing that because we don’t have boots on the ground, and we’re not flying any or hardly any sorties ourselves against Libyan targets that this doesn’t amount to hostilities. But it’s still the protracted use of lethal force in which we’re implicated. It’s sustained, it’s continuous, and it’s against a country that had not attacked us previously, so it’s an aggressive use of military force. I think it’s an uphill climb to argue that that does not amount to hostilities under the statute.

Shane also speculated that, in making this argument, the Obama administration is attempting to carve out a human rights exception in the War Powers Resolution, which would allow the president to “deploy military force for humanitarian purposes to protect civilians, at least where that can be done consistent with international law, and at least where that can be done without putting troops in harm’s way for an extended period of time.”

“If that’s what they’d like to see created, I think that’s a good debate to have,” he said. “People obviously have memories of our inaction during Rwanda, and then what we did try to accomplish in Bosnia and Kosovo, and this may be another example of that.”

But, he added, to reach that end, the administration should propose legislation.

“I think trying to create the precedent by an easily challenged interpretation of the War Powers Resolution is just not the most helpful way to preserve checks and balances and show that what you’re doing is consistent with the rule of law, which is what it should be,” he said.

Watch the video interview below and download the podcast here.