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Debate over war powers re-emerges in Congress, courts

By Tom Cohen, CNN
  • House Speaker Boehner warns Congress may try to defund the Libya mission
  • U.S. officials say the limited U.S. role in Libya falls short of the law's scope
  • 10 legislators are suing the government over the legality of the U.S. participation
  • President Obama and Boehner may discuss the issue when they play golf Saturday

Washington (CNN) -- An endless Washington debate over the president's power to go to war has resurfaced with the NATO-led Libya military mission, pitting the Obama administration against House Speaker John Boehner as well as anti-war liberals in clashes threatening to stretch from Congress to the courts to the golf course.

Boehner, R-Ohio, demanded more information from the White House this week on the U.S. role in the Libya mission, warning in a letter that President Barack Obama would be in violation of the War Powers Resolution of 1973 if he failed to get congressional authorization by Sunday, the 90th day since U.S. forces launched the campaign.

The War Powers Resolution gives the president 60 days to get congressional approval for sending U.S. forces to war, followed by a 30-day extension to end the hostilities. Boehner told reporters Thursday that if the White House fails to provide the requested information, Congress might seek to defund the military effort when it considers a defense appropriation measure next week.

"The ultimate option is the House, in fact, the Congress has the power of the purse," Boehner said. "And certainly that is an option as well."

In response to Boehner's letter, the White House sent Congress a 32-page report that asserted Obama didn't need congressional authorization because the U.S. forces play only a supporting role in Libya and don't engage in what the War Powers Resolution defined as hostilities.

"We're obviously not changing our mission," White House Press Secretary Jay Carney said Friday, later adding: "What we have said is that our role in this mission, our support role and the kind of engagement we have right now, does not meet, in our legal analysis, ... the threshold set by the War Powers Resolution for congressional action."

Meanwhile, a group of 10 House members led by liberal Democrat Dennis Kucinich of Ohio and Republican Walter Jones of North Carolina, has filed a federal lawsuit challenging Obama's power to commit U.S. forces to the Libya mission.

"We are intending through our presence and through this lawsuit to correct an imbalance which exists today, to correct a deficiency in the separation of powers, to correct ... and to firmly establish that Congress is a co-equal branch of government and that the founders made it unmistakably clear they did not intend for the war power to be placed in the hands of an executive," Kucinich said in announcing the lawsuit on Wednesday.

The showdown comes amid an already charged political environment, with Vice President Joe Biden leading bipartisan talks aimed at getting a deficit reduction deal that can bring congressional approval to raise the federal debt ceiling.

Both the War Powers issue and the deficit reduction talks are likely to come up Saturday when Obama and Biden host Boehner and Republican Gov. John Kasich of Ohio for a round of golf billed as a bonding exercise.

Carney said the golf outing "is meant to be an opportunity for the speaker and the president, as well as the vice president and Ohio governor, to have a conversation, to socialize in a way that so rarely happens in Washington."

"Obviously, I would expect they will talk about some of the very important issues that have to be dealt with by this administration and this Congress," Carney said, later adding that "it's the kind of thing the president believes is useful for the leaders in Washington to do more frequently, not the game itself, but ... to engage with each other in a non-confrontational way to sort out the business between them and the differences between them."

Political wrangling over war powers is common in Washington, with presidents frequently seeking to expand their freedom to commit U.S. forces and Congress battling to exert influence on the process.

Congressional opponents of the Libya mission include liberals such as Kucinich, who generally oppose any war effort, as well as some Republicans who complain its objective of civilian protection fails to match the stated U.S. goal of Moammar Gadhafi's ouster. The opponents also say the Libya situation could become a stalemate that drains resources at a time of mounting federal deficits that must be addressed.

The White House, however, says incremental progress is occurring through increasing diplomatic, political and military pressure on Gadhafi to step down. Carney repeatedly emphasized this week that Obama had kept his word to the American people that the initial U.S. leadership role in the mission would get reduced to a supporting role, and no U.S. ground troops would take part.

Carney also suggested that Boehner is playing politics with the issue, noting that he previously questioned the constitutionality of the War Powers Resolution in a 1999 debate over former President Bill Clinton's push to take part in NATO bombing during the Balkans conflict.

Boehner's complaints this week "stand in contrast to the views he expressed in 1999, when he called the War Powers act, quote, 'constitutionally suspect,' unquote, and warned Congress to, quote, 'resist the temptation to take any action that would do further damage to the institution of the presidency,' Carney noted.

John Yoo, a former Bush administration lawyer now with the American Enterprise Institute, also challenged Boehner's position on the matter.

In an op-ed published Friday by the Wall Street Journal, Yoo -- known for bedrock conservative views -- wrote that Boehner and other Republican opponents of the Libya mission are playing politics by arguing about the War Powers Resolution instead of using their budgetary authority to cut funding for the Libya mission.

"By accusing President Barack Obama of violating the War Powers Resolution, House Republicans are abandoning their party's long-standing position that the Constitution allows the executive to use force abroad, subject to Congress's control over funding," Yoo wrote. "Sadly, they've fallen victim to the siren song of short-term political gain against a president who continues to stumble in national-security matters."

Yoo called the lawsuit filed by seven Republicans along with Kucinich and other Democrats an "utterly futile" legal effort, adding that "the Supreme Court has consistently turned away every case disputing the president's decision to start wars abroad, and there is no reason to think it will change its ways now."

"Lawsuits only distract attention from the real weapons that Congress has to get its way and hold a wayward president accountable," Yoo wrote, saying House Republicans instead could try to defund military operations or other spending programs, or refuse to lift the debt ceiling until Obama either halts U.S. participation in the mission or gets congressional support.

Another option would be to launch an impeachment effort against Obama, Yoo said, adding that "holding hands with isolationist Democrats out of political convenience is no way to defend the Constitution."

Carney, meanwhile, said Friday that the administration would welcome congressional approval of a resolution backing U.S. participation in the Libyan mission. Such a resolution, already under discussion in the Senate, would essentially serve as authorization for the mission by Congress.

Even though the Senate in March unanimously passed a non-binding resolution supporting a no-fly zone over Libya, some Republicans now express total opposition to the U.S. support for that effort.

"Our policy in Libya is substantially flawed," Rep. Michele Bachmann, R-Minnesota, said Monday during a debate of GOP presidential hopefuls. She cited a litany of complaints -- the supporting U.S. role, a lack of vital national interest, unknown elements in the Libyan opposition being helped -- and said Obama "was absolutely wrong in his decision on Libya."

In the report titled "United States Activities in Libya," the administration said the cost of military and humanitarian operations through June 3 was about $800 million. It estimated the total cost through September 30 would be $1.1 billion.

"Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actions, the president had constitutional authority, as commander-in-chief and chief executive and pursuant to his foreign affairs powers, to address such limited military operations abroad," the report said, adding: "The president is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of 'hostilities' contemplated by the resolution's 60-day termination provision."

In response, Boehner spokesman Brendan Buck called the White House arguments "creative," adding that Obama as commander-in-chief "has a responsibility to articulate how U.S. military action is vital to our national security and consistent with American policy goals."

"With Libya, the president has fallen short on this obligation," Buck said.

Despite his tough rhetoric, Boehner indicated Thursday that Obama could satisfy his demands short of getting formal congressional authorization.

"Listen, it's been four weeks since the president has talked to the American people about this mission," Boehner said, "and I think it's time for the president to outline to the American people why we are there, what the mission is and, and what our goals are. And how do we exit this?"