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The real Obama scandal: fighting illegal wars in Libya and Pakistan

Wahington DC appears to have reached peak hysteria this week. The confluence of not one, not two, but three potential scandals involving the White House has given practically every Beltway scribe a case of the vapors as they don their Woodward/Bernstein capes and doggedly uncover the truth behind the Obama Administration's lies.

What's missing, however, is actual evidence of wrongdoing. The IRS scandal is certainly the most politically toxic, but it remains unclear that anyone from the Obama Administration knew what the IRS was doing or that the agency was even targeting conservative groups for partisan political reasons. The Department of Justice's subpoena of phone records from the Associated Press is far more troubling because it offers a glimpse into the prosecutorial zeal that has defined DoJ's investigation of leaks from within the Obama Administration.

Finally, there is Benghazi - the most hysterical scandal of them all. Indeed, it's become nearly impossible to figure out exactly what about Benghazi is so particularly scandalous. Is it that the administration refused to send in the marines or the special forces or the air force to rescue the hostages - an argument that is based on what former Secretary of Defense Bob Gates called a "cartoonish" understanding of how military force is utilized?

Is it that the White House played down the possibility of a terrorist attack in Libya, even though President Obama described it as such only days after the attack? Or is it that the White House doctored talking points so that Americans would continue to see the president as a tough guy on terrorism two months before the presidential election? What is particularly odd about this last assertion is that Obama hardly minimized the threat of terrorism during the campaign. He called it the greatest national security threat during the third debate, which, by the way, is a rhetorically promiscuous statement that dramatically overstates the danger to the United States from international terrorism.

Second, the chief scrubber of the talking points at the State Department; the person who allegedly pushed to take out any reference to terrorism in public statements about the attack was Victoria Nuland, a career civil servant who worked for former Vice President Dick Cheney. She's a strange choice, one might to say, to carry water for a bit of public relations subterfuge supposedly essential to the president's re-election chances.

In reality, Benghazi has of course never been about seeking the truth, but rather using the tragedy as a political football to attack Obama - and now Hillary Clinton as she prepares for a 2016 presidential bid.

But this doesn't mean that the Obama Administration is covered in glory when it comes to Libya. In fact, perhaps the greatest irony of all the attention to Benghazi is that there's a real scandal that Congress has largely ignored, namely the fact that President Obama, two years ago, fought a war there that represented a brazen expansion of the president's ability to wage war.

In 2011 when President Obama ordered American warplanes into action over Libya, he never bothered to get congressional authorization to do so. Presidents are not forbidden to do such things, but under the provisions of the War Powers Resolution (WPR), they are required to notify Congress within 48 hours of the onset of US military involvement. They then have 60 days to get formal authorization from Congress and if they fail to do so must cease operations within 30 days.

Presidents have traditionally chafed at the requirements of the WPR, but by and large have abided by it. But not in this case. Instead, President Obama found an out in the law; namely that he can bypass the requirements of the WPR if the US is not engaged in active "hostilities". This was precisely the position taken by the White House even though at the time US planes were dropping bombs in Libya, firing missiles from off-shore and, according to some reports, coordinating with British forward air controllers on the ground. Only by the most tortured definition do such actions not qualify as hostilities. Indeed Obama's own office of legal counsel determined that US actions represented "hostilities" and required congressional authorization to continue. They were overruled by the president.

What's worse, the administration blatantly expanded the mission in Libya from preventing humanitarian emergency to actively seeking regime change (a plan that worked as Libyan strongman Muammar Qaddafi was killed).

Even if one buys the administration's creative arguments on hostilities, it runs counter to the spirit of what Obama said in 2007 about the very notion of the executive branch acting unilaterally in the utilization of military force. As 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 History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch."

Except, it appears, when Obama is the president.

But what makes this flagrant abuse of presidential power so galling is at the same time Washington is in full scandal mode, it's happening again, right now, as we speak - and no one seems to care.

Last month, Jonathan Landay of the McClatchy News Service, relying on leaked intelligence reports, detailed what is probably the worst kept secrets in Washington - namely that US drone strikes in Pakistan are not targeting al-Qaida leaders, but rather militants who are crossing the border into Afghanistan.

This is problematic for two reasons. First, it contradicts repeated Obama administration assertions that drone strikes only target members of al-Qaida or those who pose an "imminent threat" to the United States. Taliban militants, while perhaps up to no good, don't fall into either category.

Second, the targeting of Taliban foot soldiers, in Pakistan, is not covered under the Authorization to Use Military Force (AUMF) that was passed by Congress in 2001. Thus, they are almost certainly illegal - not just under US law, but also under international law.

To be sure, US attacks on Afghan militants certainly have the outward appearance of legality and appropriateness (these militants are after all crossing the Afghan border to kill American soldiers). But the same could be said about US attacks on Cambodia during the Vietnam War, actions that were included in then-president Richard Nixon's impeachment charges by the House of Representatives. This isn't to suggest that Obama should be impeached over such actions, but a bit more congressional scrutiny is in order.

Legal justification for the use of American military force is not a mere nicety - it is a requirement of the US Constitution and stands as a bulwark against the misuse of executive power. By all accounts the Obama Administration has now fought two wars that certainly could be considered illegal - one in Libya and today, one in Pakistan.

Now that is a scandal worth getting upset about.

[Source: By Michael Cohen, The Guadian, London, 15May13]

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small logoThis document has been published on 23May13 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.