Members of Congress Challenge Libyan War in Federal Court

Today, I have the honor of representing ten members of the United States House of Representatives in challenging the constitutional basis for the Libyan War — and the underlying claims made by President Obama. These members include Democrats and Republicans from across the political spectrum. They share a belief that Article I, Section 8 of the Constitution expressly requires the authorization of Congress before a president can commit the nation to war. The lawsuit will be heard in the United States District Court for the District of Columbia. We filed this afternoon and held a press conference with the members in front of the courthouse. A copy of the complaint (which will be heard by Judge Reggie Walton) is below.

This challenge goes beyond Libya and challenges the claim by the Administration that the President has the inherent authority to order combat operations without the approval or declaration of Congress. The Plaintiffs in this action include the second most longest standing member of Congress, John Conyers, as well as leading members from both parties. The members are Representatives Roscoe Bartlett (R., Md); Dan Burton (R., Ind.); Mike Capuano (D., Mass.); Howard Coble (R., N.C.); John Conyers (D., Mich.); John J. Duncan (R., Tenn.); Tim Johnson (R., Ill.); Walter Jones (R., N.C.); Dennis Kucinich (D., Ohio); and Ron Paul (R., Tx).

This is an action for injunctive and declaratory relief. In addition to challenging the circumvention of express constitutional language, it will also challenge arguments that no one (including members of Congress) has “standing” to submit this question to judicial review. These members will ask the federal district court for review of the constitutional question and for recognition that the Constitution must allow for judicial review of claims of undeclared wars under Article I.

I am being assisted in this case by a team including Jodie Cheng, David Fox, Kyle Noonan, Eric Sidler, and Geoff Turley (no relation to Professor Turley).

We are deeply honored to represent these courageous members of Congress in their defense of important constitutional limitations on executive power. While there are many uncertain questions under the Constitution, this is not one of them. The Framers spoke repeatedly and forcibly of their desire to bar presidents from committing the nation to war without congressional authorization and inserted an express limitation into Article I. The last few years have vividly demonstrated the dangers that the Framers sought to avoid in dividing the war powers between the Executive and Legislative branches. Despite their sharp ideological differences, these members are bond by deep faith in the Constitution and a sense of responsibility in defending its provisions. We shall their concerns and are eager to advance their claims in the Judicial Branch in this lawsuit.

As in past high-profile cases, I will have to be circumspect in my public comments once the case is filed.

Here is the filed complaint: Libyan Complaint;pdf

Jonathan Turley

156 thoughts on “Members of Congress Challenge Libyan War in Federal Court

  1. All the wars need to end. If my taxes can’t be spent on my family and for my community then I don’t want them spent overseas.

  2. “[I]t will also challenge arguments that no one (including members of Congress) has “standing” to submit this question to judicial review.”

    That seems patently ridiculous.

    Although I support the rationale for emergency intervention in Libya, I also support the balance of powers. This work needs to be done and I’m grateful it’s being addressed.

  3. Swarthmore,

    Yup, and the ACLU represented the KKK when they sue for their right to hold a protest. The law is the law even if some of the people who want it upheld are jerks.

  4. Gyges You are right, but I still wonder what the teabaggers motives are. Don’t remember Burton as being anti-war before.

  5. Swarthmore,

    Well, I’m guessing most of the Republicans are being partisan hacks (I exclude Ron Paul, he’s pretty consistant in his anti-war/everything the government ever does stance). However, I don’t think you can say that about either Conyers, Kucnich or JT. I’m much more interested in what motivates them.

  6. I’m surprised it has taken this long for members of Congress to act. Best of luck, Prof. Turley. Regardless of outcome, this is an important challenge.

    Swarthmore – I don’t think this is necessarily an anti-war challenge motivating individual Repreentatives. The challenge is first and foremost about clarifying limits on Executive Powers, which in theory, should be consistent with Tea Party interests. Now it might be fair to question whether these members would proceed with this challenge were a member of their own camp in the White House. But, political opportunism aside, the question of whether the President has Constitutional authority to take this type of action unilaterally is important to our understanding of Separation of Powers.

  7. JT,

    Let me add my thanks to you for your participation in this effort. It was very encouraging to read about this action and knowing the level of expertise you will bring.

    The legitimacy of US military action been suspect on too many occasions, but none more so than when our forces are mobilized by a warmaking dictator. Let’s hope this ends well.

  8. Swarthmore mom,
    I had the same reaction to seeing the names on that list but these questions would naturally come from outside the mainstream of political ambition and propriety. This constitutional tension arises not just from a grossly overpowered executive branch but also from a grossly servile Congress (which are both things that proper politics has all but insisted on).

    I would have made the same decision Obama did, even knowing I was pushing the limits of constitutional authority. I would not allow an overtly hostile, opposition-led Congress to chain me, helpless but ultimately answerable, into a front row seat of another genocidal atrocity like it did to Rwanda and Clinton.

    Maybe if Congress bore the weight again of these decisions, the incompetence of our political machinery to form emergency humanitarian consensus would self-correct. But even if it doesn’t (I’m not holding my breath) at least moves like this make it clear to those in future need that our Constitution only allows a US President to do so much before the braking mechanisms kick in, so they know to use the time under wing wisely.

  9. Yeah. Revolting, nutjob stuff. Still, they were duly elected and they along with some other real pips have glommed on to a valid constitutional problem. It doesn’t give any of their other nonsense a veneer of respectability and it doesn’t make this problem any less valid.

    I, like you, seriously doubt that a lot of the people on that list entered into this challenge after an agonizing debate about the possibility of creating constitutional infirmity or the fairness of only ever counghing these bipartisan objections up when a Democratic president in office. I do not have the same doubts about their legal team.

  10. I am pleased to see this suit filed and look forward to reading the complaint. I expect the court will turn itself into knots trying to find a way to treat the issues as non-justiciable political questions.

  11. Can anyone comment on the timeline for processing this through the federal district court or guess on how long before a ruling if the court takes up the issue?

    If the executive branch loses, what are the implications, and what actions can the court mandate?

  12. I am glad that the suit was filed and I wish Prof. Turley well in his efforts to rein in a runaway Executive Branch. That being said, I do have the same concerns that Swarthmore Mom has about the Tea Party members who have signed on to this cause. Gyges is probably right that they are signing on for political reasons, but we need to be out of Libya and Iraq and Afghanistan, as well. Will he case discuss the need for a real Congressional approval for our actions in Iraq and Afghanistan(and Yemen and Pakistan)?

  13. I think you have a winner here. I’ve long questioned the propriety of the War Powers Act which authorizes short-term military actions by the President with notice to Congress within 48 hours and troop committments of up to 60 days with a 30 day extension under certain circumstances. The value of Article 1, Sec. 8 is the restraint on the Executive’s ability to commit the nation to foolish wars.

    “”The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war to the Legislature.”

    ~James Madison’s letter to Thomas Jefferson (1798)

    Jefferson apprently took it to heart:

    “Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided.”

    ~Thos. Jefferson, Message to Congress (1805)

  14. Mike Appleton: “I expect the court will turn itself into knots trying to find a way to treat the issues as non-justiciable political questions.”

    I’m keen to see how the issue plays out within the complaint.

  15. The Constitution expressly and exclusively vests in the legislature the power of declaring a state of war; it was proposed that the executive might, in the recess of the legislature, declare the United States to be in a state of war.

    The Constitution expressly and exclusively vests in the legislature the power of raising armies: it was proposed, that in the recess of the legislature, the executive might, at its pleasure, raise or not raise an army of ten, fifteen, or twenty-five thousand men.

    The Constitution expressly and exclusively vests in the legislature the power of creating offices; it was proposed that the executive, in the recess of the legislature, might create offices, as well as appoint officers, for an army of ten, fifteen, or twenty-five thousand men.

    A delegation of such powers would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments.

    The separation of the power of declaring war from that of conducting it is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.

    The separation of the power of raising armies from the power of commanding them is intended to prevent the raising of armies for the sake of commanding them.

    The separation of the power of creating offices from that of filling them is an essential guard against the temptation to create offices for the sake of gratifying favorites or multiplying dependents.

    Where would be the difference between the blending of these incompatible powers, by surrendering the legislative part of them into the hands of the executive, and by assuming the executive part of them into the hands of the legislature? In either case the principle would be equally destroyed, and the consequences equally dangerous.

    An attempt to answer these observations by appealing to the virtues of the present chief magistrate and to the confidence justly placed in them will be little calculated either for his genuine patriotism or for the sound judgment of the American public.

    The people of the United States would not merit the praise universally allowed to their intelligence if they did not distinguish between the respect due to the man and the functions belonging to the office. In expressing the former, there is no limit or guide but the feelings of their grateful hearts. In deciding the latter, they will consult the Constitution; they will consider human nature, and, looking beyond the character of the existing magistrate, fix their eyes on the precedent which must descend to his successors.

    ~James Madison ,“Political Observations” (20 April 1795).

  16. War Powers Act Does Not Apply to Libya, Obama Argues
    Published: June 15, 2011

    WASHINGTON — The White House is telling Congress that President Obama has the legal authority to continue American participation in the NATO-led air war in Libya, even though lawmakers have not authorized it.

    “We are not saying the president can take the country into war on his own,” Mr. Koh said. “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.”

    By this reasoning, the president can deplete the defense resources of this country by scattering it around the world in missions he deems not the ‘kind of hostilities envisioned by the War Powers Resolution.’

  17. I just finished reading the complaint and I’d like to say good luck, Professor.

    And even though I’m now in the unfortunate situation of having to cheer on Ron Paul it is compensated by being able to cheer on Dennis Kucinich as well as you our munificent host.

  18. First time comment. Although Burton and his close pals in this group have earned from me much justified derision, and although I did and still do support this president, shortcomings, failings and all, I too believe the boundary has been not just stepped over, but trampled by an imperial presidency legacy held over from the Shrub/Dick days. Pull your head out, Barack.

  19. This is the first very good news in a very long while.

    This action exemplifies the just cause of a bona fide constitutional attorney/scholar contesting a bogus lawyer/president who projects the antithesis of respecting and adhering to the U.S. Constitution.

  20. It’s interesting and a little sad that to some, what’s important here isn’t the objection to illegal acts of war (which is the most serious action one country can undertake) by a President who has overseen the destruction of thousands of innocent lives at home and abroad, but rather the political affiliation of some of the people who are objecting.

  21. Les,
    The reason it is important to note the affiliations of anyone involved is because usually there is a reason why some people get involved in a lawsuit like this that goes beyond the constitutional issues. Hypocrisy has a tendency to rear its ugly head whenever the tea party is involved.

  22. rafflaw

    I think that’s probably true. Can you imagine Cheney with a DoW under his belt? “Be careful what you wish for”, once again.

  23. Les, the reason the politics of the situation is noted at all is that some of these same people were cheering the loudest when it was Boy Blunder and his Super Friends stomping on the Constitution. The (well-founded) belief is that the election of a white, male, Republican President will again dampen their enthusiasm for this effort.

    Since everything that group does is based on what is good for the Party & ignores what is good for the country unless it accidentally fits their immediate need we are naturally nervous to side with them.

    Where were these people 8 years ago?

    The courts will punt on the issue, reasoning that if Congress does not approve of the president’s decision, they can cut-off funds for the operation. If the president resists, the Congress can impeach.

  25. Some qoutes that caught my eye,”Preparedness meets Opportunity”Good Luck Professor.


    Hypocrisy has a tendency to rear its ugly head whenever the tea party is involved.”

    “Swarthmore mom

    kimberley, Some of these guys are sponsors of the birther bill.”


    Of these, Bartlett, Capuano, Coble, Johnson and Jones all voted for the Iraq war authorization.”

  26. frank and rafflaw,

    Oh, I understand that part. Really, I do. Politicians are hypocrites. The fact that some of the politicians who have challenged Obama on this are hypocrites is, to me, unimportant, because politicians will always be hypocrites. It’s an everyday occurrence in the world of politics.

    So we have two matters here. We have a President who has unilaterally ordered military action against another country, outside the authority granted to him in the Constitution. And then, we have politicians being hypocrites.

    One matter involves life and death and the distinct appearance of a President flouting the law in order to invade another country. The other involves the same kind of petty politics that have been around since before the birth of the nation.

    Whether or not some of the politicians who are challenging the President’s authority on this are hypocrites – and I’m sure we can agree that they are – is irrelevant to the question of whether or not our President has broken the law in unilaterally ordering acts of war to be committed upon another country.

    In other words, one of these issues matters and one doesn’t.

  27. White House to Congress: We Don’t Need Your Authorization On Libya

    WASHINGTON — The White House finally made its case to Congress on why it doesn’t need lawmakers’ approval to forge ahead with military operations in Libya: Because we’re not at war.

    Senior administration officials said Wednesday that the fact that the U.S. is only playing a support role in the NATO-led military effort in Libya — that is, no U.S. troops on the ground and no potential for casualties — and only plans to be involved for a short time means Obama doesn’t need congressional authorization per the War Powers Act to proceed

  28. “The Plaintiffs acknowledge that standing of members has been curtailed in prior judicial
    opinions, but they believe that these decisions allow for an exception for these claims and that members of Congress must have the ability to seek judicial review in this context.”

    Really? Um, where are those exceptions exactly? I read all those cases today and I see no exception at all. In fact, this is almost exactly Campbell v. Clinton. What exactly differentiates this case from that one?

    Won’t hold my breath for an answer.

  29. Most Auspicious!

    In light of the Full Blood Red and fully eclipsed Moon,
    The middle of the month, in the middle of the year …
    (and my birthday…)

    and thank you so much, whichever way it goes, this is an important statement that we need to see made….and I do hope the effort succeeds.

  30. Catullus “If the president resists, the Congress can impeach”.

    Ya think? I’m wondering if the President is talking about one term because he understands their intent. Of course the fact that Dunbar is finally subpoenaing witnesses in the CIA torture investigation may be a form of insurance against that.

  31. Les: “Whether or not some of the politicians who are challenging the President’s authority on this are hypocrites – and I’m sure we can agree that they are – is irrelevant to the question of whether or not our President has broken the law in unilaterally ordering acts of war to be committed upon another country. In other words, one of these issues matters and one doesn’t.”

    To argue contrariwise is to invoke the tu quoque fallacy; assuming all ‘hypocrisy’ centers around whether or not to call a president out on unconstitutional activities.

  32. Bob, Esq.:

    I thought the tu quoque argument was supposed to be raised by a party as justification for its failure to confirm judicial candidates.

    And happy b’day, Woosty.

  33. The courts refused to get involved in either the Iraq or the Vietnam wars. Why will they choose this one ? I am not picking on the tea party members or the birthers for being hypocrites. I am always suspicious of their motives and curious why they would want to spend their funds on this.

  34. Swarthmore mom, (I’d like to just address you as “mom,” but we hardly know each other!)

    The courts refused to get involved in either the Iraq or the Vietnam wars. Why will they choose this one ?

    Iraq and Vietnam were authorized by Congress. There were stupid and evil ventures, but there you have it. Obama didn’t receive authorization from Congress, so I do hope the courts get involved.

    Personally, I think Nixon and Kissinger should have been put in prison for their secret bombings of Laos and Cambodia, which had to be illegal (unless someone here in the know can explain how they weren’t).

    I’d like to see Bush and Cheney in prison too, but Obama has protected them here and overseas from investigation, while he’s been prosecuting whistle-blowers at the highest rate in decades.

  35. CNN interrogates Kucinich on the case. The interviewer implies that no war can exist without “boots on the ground” in Libya:

  36. Glenn Greenwald writes about the positiveness amidst the hypocrisy.

    “The very pro-Obama blogger Booman today astutely argued that the GOP is of course being hypocritical in its sudden assertion of Congressional war powers (Boehner, for instance, long argued against the law’s viability), but that — regardless of the hypocrisy — this is nonetheless a positive development. Indeed it is. The very idea that the President can start and prosecute wars on his own, without democratic consent, is not only lawless but is the hallmark of an empire, and it’s long past time to put an end to that abuse. Even Bush went through the motions of having Congress endorse his wars.”

  37. I am grateful to know there are still courageous members in the American Government.
    Thank you to all pursuing this important action.

  38. Les

    but Obama has protected them here and overseas from investigation, while he’s been prosecuting whistle-blowers at the highest rate in decades.

    Whistleblowers Call to Rescind Obama’s ‘Transparency Award’

    Over 20 noted whistleblowers have just released a petition calling for rescinding a “Transparency Award” President Obama recently received.

    The signatories including Daniel Ellsberg, who leaked the Pentagon Papers; former CIA analyst Raymond McGovern; former Pentagon analyst Lt. Colonel Karen Kwiatkowski; and former National Security Agency analyst Russ Tice.

  39. Les – I agree but thought you were suggesting that concern for the intent of some of the parties involved where meant as defense of Obama. I think it is possible to oppose the expansion of prez power no matter which party is in office but know that a lot of the people behind this are only in it for the politics. Those people need to be pointed out loudly now so they can’t pretend after the next election.

  40. W=c, day late like usual, happy birthday.
    And when it comes to Mus music, while this is not happy birthday, this is my choice:

  41. Late to the party as usual. Happy Birthday Woosty, my fellow Gemini. At my age, I just tell people the most appropriate sentiment is, ” Congratulations on surviving.” But at any rate, hope your coming year is prosperous and joyful.

  42. I think Glenn Greenwald gives an excellent analysis of most tea party member’s motives. Their hypocrisy is exactly the same as the hypocrisy of those who support Obama even as he does things they complained about when Bush did them. The real point of this lawsuit is that it attempts to set some kind of limit on dictatorial powers being claimed by Obama. IMO, the Congress should cut off funding for all the imperial wars. For example, we are secretly cluster bombing the people of Yemen.

    It does not matter what party he or she is from. It is dangerous to support a dictator. Republicans were wrong not to go after Bush for his power grab and Democrats are wrong not to go after Obama for his. This nation is at stake. Justice is a stake. Lives are at stake.

    ” For the reasons I described at length on Monday, this GOP transformation — with a few exceptions — is everything but sincere; it is partisan, opportunistic, and cynical, and it’s very hard to imagine it enduring under a GOP President (after all, the last time there was a GOP President, the party all but declared war opposition to be a form of treason: cut and run! Impeding the troops in harm’s way!! Undermining the Commander-in-Chief in a time of war!!!). But it is nonetheless a useful development. Given that the current Democratic President has proven to be so enamored of war and bombing policies — and that GOP hawks now find themselves defending Barack Obama and his foreign policies far more than they criticize them — it really is not hard to imagine, as Diehl put it, that the 2012 GOP nominee’s “criticism [of Obama’s foreign policy will] come from the anti-intervention left, rather than the hawkish right.” That seems clearly preferable to a “debate” in which each side tries to prove they’re more war-loving and bellicose than the other.

  43. I don’t like the rest of the Tea Party’s agenda, either.. I don’t think they are the positive force in the political landscape that some here apparently do.

  44. Sure, some in the tea party want to quit spending on wars which is fine. But this is just part of their agenda to cut or eliminate every government program in existence. Someone asked Ron Paul if wanted to privatize the Grand Canyon, and he did not say no.

  45. Swarthmore mom, who here, in particular, “apparently” thinks the Tea Party is a “positive force in the political landscape?”

  46. I thought I commented on this yesterday, but I guess not. Just wanted to say thank you JT, this is good news. The concept of Pax Americana is a bad one and curiously our choices of intervention usually concern areas with oil. I wonder why?

  47. I just want you to know I was really pleasantly overwhelmed w/the birthday wishes…thank you all!

  48. Obama’s response to the law suit: “I did not have war with that country.”

    (courtesy of someone on facebook relayed by a poster on Common
    Dreams, phoenix 20)

  49. Jill,

    Now that’s funny. :mrgreen:

    Maybe we should check Libya’s dress for suspicious stains?

    Perhaps . . . oil stains?

  50. “IMO, the Congress should cut off funding for all the imperial wars. For example, we are secretly cluster bombing the people of Yemen.

    It does not matter what party he or she is from. It is dangerous to support a dictator. Republicans were wrong not to go after Bush for his power grab and Democrats are wrong not to go after Obama for his. This nation is at stake. Justice is a stake. Lives are at stake.” -Jill

    I agree, and it bears restating

    (Happy belated birthday, Woosty.)

  51. The republicans involved have all signed on to the Tea Party. When someone designates that he or she is a tea party member, I pay attention.

  52. Swarthmore mom, Blouise,

    I don’t trust them either but, in this case maybe they’re doing the right thing, for the wrong reasons… I trust/hope that they’ll shoot themselves in the collective foot, at some point…

  53. I find it highly unlikely that this will ever reach, or be decided on, by the Supreme Court. First, it would be a serious departure from previous case history to find that these Congresspeople have standing. Like TSO, I have read some of the previous challenges by members of the legislature against executive action, and I fail to see how this suit has distinguished itself from thsoe.

    Second, due to the timeline involved, I think there is a real possibility that even if the Court overturned its previous holdings standing for these kinds of actions, the case might already be moot. In which case there would still be no decision.

    Although I would be very intereseted to see how the Court came out on the tug-of-war between the legislature’s powers to declare war and raise armies and the executive’s powers as commander-in-chief and a foreign affiars policy-maker…I don’t think that is going to happen. So I will watch with interest, Professor Turley, but I fear that this might be a waste of time, effort, and (already limited) government money.

  54. Obama’s actions on this are worrying from another perspective. Had he asked Congress to approve his war they would likely have done so. I haven’t seen Congress (as a group) standing up for civil liberties, stopping torture, renditions, murder etc. so why would they suddenly say “no” on this one?

    The UK just extended their own authorization to “help” Libya until the end of Sept. What if the govt. would also like to engage in full scale kinetic action “helping” ? Maybe the administration wants to complete the precedent that they really don’t have to bother with Congress at all? I don’t know, but there is something very strange and very scary going on here. And yes Buddha, I do believe that stain is oil!

  55. 2 Top Lawyers Lost to Obama in Libya War Policy Debate
    Published: June 17, 2011

    WASHINGTON — President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

    Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

    But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

    Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.

  56. Obama rejects top lawyers’ legal views on Libya

    In 2007, former Bush Deputy Attorney General James Comey testified to the Senate Judiciary Committee about an amazing event. Bush’s then-Attorney General, Alberto Gonzales, had blocked Comey from testifying for two years — once Democrats took over Congress, that obstruction was no longer possible — and it quickly became apparent why Gonzales was so desperate to suppress these events.

    Comey explained that, in 2004, shortly after he became Deputy AG, he reviewed the NSA eavesdropping program Bush had ordered back in 2001 and concluded it was illegal. Other top administration lawyers — including Attorney General John Ashcroft and OLC Chief Jack Goldsmith — agreed with Comey, and told the White House they would no longer certify the program’s legality. It was then that Bush dispatched Gonzales and Andy Card to Ashcroft’s hospital room to try to extract an approval from the very sick Attorney General, but, from his sickbed, Ashcroft refused to overrule Comey.

    Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney’s top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush — wanting to avoid that kind of scandal in an election year — agreed to “re-fashion” the program into something those DOJ lawyers could approve (the “re-fashioned” program was the still-illegal NSA program revealed in 2005 by The New York Times; to date, we still do not know what Bush was doing before that that was so illegal as to prompt resignation threats from these right-wing lawyers).

    That George Bush would knowingly order an eavesdropping program to continue which his own top lawyers were telling him was illegal was, of course, a major controversy, at least in many progressive circles. Now we have Barack Obama not merely eavesdropping in a way that his own top lawyers are telling him is illegal, but waging war in that manner (though, notably, there is no indication that these Obama lawyers have the situational integrity those Bush lawyers had [and which Archibald Cox, Eliot Richardson and William Ruckelshaus had before them] by threatening to resign if the lawlessness continues).

    There’s another significant and telling parallel between Obama’s illegal war and the Bush eavesdropping scandal. One of the questions frequently asked about the NSA scandal was why Bush and Cheney decided to eavesdrop in violation of the law rather than having Congress approve their program; in the wake of 9/11, both parties in Congress were as subservient as could be, and would have offered zero resistance to requests by the administration for increased eavesdropping powers (the same question was asked of Bush’s refusal to seek Congressional approval for the detention and military commissions regime at Guantanamo). The answer to that question ultimately became clear: they did not want to seek Congressional approval, even though they easily could have obtained it, because they wanted to establish the “principle” that the President is omnipotent in these areas and needs nobody’s permission (neither from Congress nor the courts) to do what the President wants.

    The exact same question emerges here. From the start, the GOP leadership was vocally supportive of the war in Libya. In fact, John McCain was demanding the war begin before Obama even committed to it, while Lindsey Graham was urging the war be waged more aggressively. On the eve of the war, GOP House Speaker John Boehner — while calling on Obama to be clear about the mission — issued a statement declaring: “The United States has a moral obligation to stand with those who seek freedom from oppression and self-government for their people. It’s unacceptable and outrageous for Qadhafi to attack his own people, and the violence must stop.”

    Indeed, Obama’s most valuable allies on Libya from the start (as is true for his war in Afghanistan and other Terrorism policies) have been Republican leaders. As The Washington Post reported in early June, Boehner — acting as an “unlikely ally” of Obama — introduced a meaningless resolution as a means of preventing passage of a more meaningful anti-Libya resolution: namely, Rep. Kucinich’s bill to compel withdrawal within 15 days. Moreover, most of the GOP House leadership just this week voted (along with Democratic leaders) against Brad Sherman’s amendment to cut off funds for Libya if Obama refuses to comply with the WPR. Right-wing support for Obama’s Libya policy continues to be strong, as yesterday Bill Kristol and other assorted neocons issued a letter urging steadfast support for the war.

  57. Off Topic:

    U.S. Pressing Its Crackdown Against Leaks
    New York Times
    Published: June 17, 2011

    WASHINGTON — Stephen J. Kim, an arms expert who immigrated from South Korea as a child, spent a decade briefing top government officials on the dangers posed by North Korea. Then last August he was charged with violating the Espionage Act — not by aiding some foreign adversary, but by revealing classified information to a Fox News reporter.

    Mr. Kim’s case is next in line in the Obama administration’s unprecedented crackdown on leaks, after the crumbling last week of the case against a former National Security Agency official, Thomas A. Drake. Accused of giving secrets to The Baltimore Sun, Mr. Drake pleaded guilty to a minor charge and will serve no prison time and pay no fine.

    The Justice Department shows no sign of rethinking its campaign to punish unauthorized disclosures to the news media, with five criminal cases so far under President Obama, compared with three under all previous presidents combined. This week, a grand jury in Virginia heard testimony in a continuing investigation of WikiLeaks, the antisecrecy group, a rare effort to prosecute those who publish secrets, rather than those who leak them.

    The string of cases reflects a broad belief across two administrations and in both parties in Congress that leaks have gotten out of hand, endangering intelligence agents and exposing American spying methods.

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    In particular, critics of the leak prosecutions question the appropriateness of using the Espionage Act, a World War I-era statute first applied to leaks in the Pentagon Papers case in 1971. They say it is misleading and unfair to lump the likes of Mr. Drake and Mr. Kim with traitors like Aldrich Ames or Robert P. Hanssen, who sold secrets to the Soviet Union.

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