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Obama follows in Bush's footsteps on War Powers

By Michael V. Hayden, Special to CNN
  • Gen. Michael V. Hayden: President hardly consulted Congress before Libya action
  • He says president is following George W. Bush, others in taking robust view of powers
  • Candidate Obama said president can't unilaterally take military action without imminent threat
  • Hayden: Tension between Congress and White House is constant

Editor's note: Gen. Michael V. Hayden, who was appointed by President George W. Bush as CIA director in 2006 and served until February 2009, is a principal with the Chertoff Group, a security consulting firm, and a distinguished visiting professor at George Mason University. He formerly was director of the National Security Agency and held senior staff positions at the Pentagon.

(CNN) -- Although it was slow in building, there is now a serious constitutional and political "game on" in Washington. It all revolves around the meaning of hostilities as envisioned by the War Powers Resolution of 1973.

The Obama administration has reasoned itself into a position where it hardly consulted with Congress before committing U.S. forces to Libya and now believes that congressional approval for continued operations is not required under the War Powers statute.

The administration's conduct before the action disappointed many in Congress since much of the White House's justification for taking action rests on the consensus of several deliberative bodies: the United Nations, NATO, the African Union and the Arab League. From a congressional point of view, it appears that the need to consult stops at the water's edge -- coming this way!

The administration's conduct also surprised me, not because I doubt that the president has such authority, but because this president, as a candidate, said that he didn't.

In a campaign marked by stinging criticism of President George W. Bush's alleged executive excess, candidate Obama wrote: "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

The exercise of executive authority obviously (and, in my view, fortunately) looks different from the Oval Office than it does from a hotel room on the campaign trail.

The exercise of executive authority ... looks different from the Oval Office than it does from a hotel room on the campaign trail.
--Michael V. Hayden

In its claim that the Libya operation doesn't need congressional approval under the War Powers Act, the White House is saying United States is not engaged in hostilities. Defining the ongoing Libyan operation as something other than hostilities is equally puzzling.

Using armed Predator drones against Libyan targets with the occasional defense suppression strike from manned aircraft, all the while being on call for more robust missions and with U.S. servicemen collecting imminent danger pay ... all that certainly feels like hostilities. Perhaps that is why the offices that traditionally make such judgments -- the Department of Justice's Office of Legal Counsel and the Department of Defense (which is carrying out the activities) -- reportedly do not accept that these activities are not hostilities.

And perhaps the definitional contortions put forth by the administration in its report to Congress -- that these actions are not hostilities -- are meant to avoid what is clear to many people: This president is exercising a robust version of executive authority.

Not unlike his predecessor. In October 2001, Bush relied on the president's Article II authorities and his reading of congressional action (the Authorization for the Use of Military Force against al Qaeda) to direct the intercept of certain terrorist communications entering or leaving the United States. As today, some in Congress believed that this terrorist surveillance program exceeded the president's authority and violated a statute, in this case the Foreign Intelligence Surveillance Act, or FISA.

Opinion: Administration's view on Libya action strains credibility

Gratefully, we have not (yet) approached the naked vitriol that characterized the public debate over the terrorist surveillance program. That may have been fueled by the program's secrecy (a necessary attribute of any successful intelligence collection program), and the overall tone certainly wasn't helped by press coverage that was often inaccurate and occasionally hysterical.

But, drama aside, this is not unfamiliar ground for the nation's intelligence and security services. They often work on the outer edges of executive power and, when they are in that neighborhood, congressional members of both parties routinely turn up the heat.

When appearing before Congress as CIA director, I sometimes described the agency as being between two sets of tectonic plates.

The first was labeled Republican and Democrat and, depending on the issue, the agency could expect seismic pressure from the right (the 2007 estimate that Iran had stopped work on weaponizing a nuclear device comes to mind) or from the left (almost anything that had to do with detention and interrogation of al Qaeda leaders).

Obama ... is acting like his predecessors in exercising executive powers vested in the president by the Constitution.
--Michael V. Hayden

But the Republican-Democrat plates were never as powerful as the second set, which I simply labeled Article I and Article II -- my shorthand for the tension between the legislative and executive branches intentionally designed by the Founding Fathers and written into the Constitution.

We routinely saw this tension when the president limited notification of covert actions to the congressional leadership -- the so-called Gang of Eight. We saw it too when the president relied on his Article II powers to authorize a particular action in the face of congressional opposition or, in the view of some, statute.

President Barack Obama has been no exception. He threatened to veto an intelligence authorization bill that would constrain his authority to limit congressional notifications. And today, whatever, one thinks of the merits of the Libyan action, he is acting like his predecessors in exercising executive powers vested in the president by the Constitution.

The debate goes on and such debates -- War Powers, FISA and more -- are the stuff of our democracy, the inevitable product of the inherent stress between an empowered executive and the protection of liberties, both of which were called for in the Federalist Papers.

Opinion: McCain, Graham show courage on Libya

As the current debate goes forward, then it might be useful to recall that it is not new, that we have been here before, and we will likely be here again. That should help us restrain our rhetoric. In the past security professionals and the policy makers they served -- operating within legitimate (if not universally accepted) constitutional approaches -- have been subjected to vile personal attacks. This should not have been. It should not be.

We should also recall that the men and women in our intelligence and security services must act. They do not have the luxury of delay and extensive discussion. They must bomb or intercept communications in accordance with their orders and the law as it is defined for them.

They do that with greatest confidence and effect when both political branches of government broadly concur. The task is tough enough without having to deal with tectonic plates as well.

The opinions expressed in this commentary are solely those of Michael V. Hayden.