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Voting "Present" is not good enough Glenn Greenwald excoriates the Obama administration for not getting congressional authorization for the US intervention in Libya, highlighting the War Power’s Resolution’s timeline giving the president sixty days to get congressional assent. Yesterday, Obama’s sixty days on Libya without congressional approval were up. Overall, Greenwald characterizes the situation as akin to a power grab and a troubling expansion of the “imperial presidency” – a continuation and cementing of some of the worst impulses of the Bush administration in expanding executive power unreviewed.

There is a lot to be said for the argument Greenwald advances. Like Greenwald and the two Washington Post op-ed writers he highlights, I find the Obama administration excuses for avoiding congressional approval feeble. NATO taking the lead should not mean Congress is sidelined from officially expressing a position on Libya, especially given the huge US role in NATO and ongoing US role in the Libya intervention. The other excuse, America stop bombing for a day to reset the 60 day clock, is a silly nonsense unworthy any who advance it.

Given the Constitution gives the Congress the responsibility for declaring war, we should have a strong presumption in favor of officially articulated Presidential-Congressional cooperation in warmaking. Both keys should be turned as a matter of law and good public policy. Congress handing its key to the president to decide on war alone is an invitation to trouble. I favor the Libya intervention, but the president should have to make his case to members of Congress and the American public. I buy the idea that the exigencies of the circumstance required swift action, but consultations with Congress should have run on a parallel track with similar urgency. Just as a set of precommitments underpin the responsibility to protect in international law, the power to make war is underpinned by a set of precommitments; the Constitution represents a precommitment to certain relations between the branches of government. Being a decision of such great magnitude, committing the nation to war requires more than silly legal games to attempt to reset a clock on having Congress speak on the matter. Both the letter and the spirit of the framework the Constitution establishes matter.

I differ from Greenwald in that I attribute more responsibility for the present circumstance – underscrutinized military intervention – to Congress than the Obama administration (though the Obama administration deserves its rightful share of the responsibility). Unfortunately, Congress collectively has not decided to express a view on Libya. Yes, individual members of Congress have come out for or against intervention, and also, various members have asked to be given an opportunity to vote on the matter. But as a collective body Congress, a coequal branch of government, has left its constitutionally apportioned responsibility unfulfilled. In this case most irresponsibly, Congress has been a quiet coequal.

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Not for first drafts.
(White House briefing room via the Guardian)

The US intelligence community and special operations: Yes, well done. The Obama administration communications team: Not so much.

Over the past week the Obama administration communications team needed to provide “timely and accurate information” on the death of Osama bin Laden – the administration has fallen short of the “accurate” goal set out in the White House Briefing Room site. The administration’s job was to satisfy a number of constituencies interested in learning about bin Laden’s death: the general American public, foreign publics, and the international law wonks. In accounting for bin Laden’s death each of these constituencies would be more demanding than the next. The general American public would be easily satisfied with administration explanations of events leading to bin Laden’s death. A man responsible for a traumatic attack on the United States, the worst since Pearl Harbor, had been killed. The American public with a passing interest in news, and not particularly interested in the finer points of international law, would content itself with a rough account of bin Laden’s demise.

But for foreign publics, international law scholars, practitioners, and analysts a first draft level effort is not nearly enough. These constituencies will not readily accept the fog of war as an excuse for inaccuracies. When you’re responsible for giving the definitive account of events you can’t keep changing the story. Revisions cloud a picture that had the potential to be far clearer. Mark Halperin identifies Obama administration mistakes in the aftermath of killing bin Laden, his rundown of some communications mistakes early in the week:

Not getting its story straight: Was bin Laden armed or not? What woman served as a human shield? Who actually was killed beyond the main target?

Poor quality information about the surrounding circumstances necessarily leads to poor quality explanations as to US conduct’s compliance with international law. Better communications early on would have avoided an endless maze of speculation on legitimate targeting, lethal force, and related matters. It is not as though the administration has not considered the international legal underpinnings of its actions. As Kenneth Anderson observes at Opinio Juris, State Department Legal Adviser Harold Koh gave the administration’s perspective in a 2010 speech to the American Society of International Law. Even though later well supported, mere assertions of bin Laden being brought to justice are insufficient. By Wednesday the administration had “articulated the right standard and analysis to this case” (HRF).

Far better to get the official account right the first time and to clearly (re)state the administration’s legal position at the outset than to spend days repairing wounded credibility.

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