The Constitutional Clock Is Ticking on Obama's War

There's no question about it: The president must ask Congress to approve the Libya intervention. So why is Obama resisting?

It's now clear that the Libya campaign won't last "days, not weeks," as U.S. President Barack Obama promised, but rather, months -- and maybe years. Before U.S. involvement stretches that long, however, the administration will have to confront the 60-day time limit set by the War Powers Resolution, during which the president may take unilateral military action without a congressional resolution. After the 60th day, if Congress refuses to consent to the operation, the president is required to withdraw from Libya within 30 days. Today is day 19.

Yet over the past week, the administration has become "evasive and vague," as Rep. Brad Sherman put it last week, about the need to comply with the resolution's time schedule. The question is whether the president will take the lead in lobbying for the necessary congressional support, or whether he will leave Congress to its own devices. The Senate already passed an advisory resolution on March 1 encouraging the U.N. Security Council to impose a no-fly zone, but the War Powers Resolution demands that both houses give their formal consent, not merely cheer on from the sidelines. While leading Republicans in the House of Representatives have joined senators like John McCain in backing the Libya campaign, the White House seems reluctant to push for a formal vote. Indeed, the administration suggested on March 24 that "time-limited, scope-limited military action" isn't the sort of thing the Constitution had in mind when giving Congress the power to declare war.

This narrow redefinition of "war" represents a fundamental breach with constitutional tradition. "Time-limited, scope-limited military action" is as old as the republic. In 1798, the newly formed United States launched its first military struggle as a "limited war" with France. Instead of standing on the sidelines, Congress passed four separate statutes spelling out the scope and limits of the conflict. The Supreme Court then made it clear in 1800 that limited, as well as unlimited, wars must be approved by Congress.

In the modern era, all U.S. conflicts have been limited wars. The last time Congress pledged to devote "the entire naval and military forces of the United States and the resources of the Government" was when it declared war on Germany in World War II. In the aftermath of the Vietnam War (perhaps the most scarring limited war), Congress saw the need to pass the War Powers Resolution, which aimed to "fulfill the intent of the framers of the Constitution of the United States" by ensuring that the "collective judgment of both the Congress and the President" would control the use of force.

President Richard Nixon vetoed the resolution in 1973 precisely because it placed constraints on unilateral war-making by the executive office. But as the measure had the broad support of ordinary Americans, it was passed by a two-thirds majority in both the Senate and House. This judgment, made by a generation that had struggled through World War II, the Korean War, and the Vietnam War, should not be dismissed lightly.

The Justice Department has itself recognized this point. In 1980, its Office of Legal Counsel affirmed the constitutionality of the 60-day limit. Its opinion declared that the time limit provided the president with sufficient flexibility "under any scenarios we can hypothesize to preserve his constitutional function as Commander-in-Chief." Certainly, Libya provides no exception.

Some, including John Yoo, argue that the time limit established by the resolution isn't really necessary. They suggest that Congress can stop a war simply by denying the president funds needed for the conflict. But this simply isn't true in this day and age. The current $660 billion Pentagon budget allows the president to continue the war for a substantial period without seeking a special appropriation. Indeed, Obama has already spent more than $550 million on the Libya campaign without formally requesting a single cent of it. The moment for congressional decision should not depend on creative bookkeeping in the Defense Department. Until the president comes forward with a special request for new money to pay for the war, it will require two-thirds of both houses of Congress to deny him funding for the military operation over his likely veto.

Obama appears even more unwilling than his much-criticized predecessors to reach out to Congress. President George W. Bush got Congress to sign onto the wars in Afghanistan and Iraq before the first American assault; and President Bill Clinton won congressional approval for a targeted appropriation in support of his Kosovo campaign during the 60-day window established by the resolution. Obama should take the same course, building the bipartisan coalition required to redeem his unilateral action. Congressional buy-in is especially important now that the Libya campaign threatens to drag on. If the president tries to go it alone now, he greatly increases the risk of partisan attacks in the future. Beyond the pure constitutional arguments, there's a positive political calculation to be made here as well.

Equally important, an exercise in unilateralism will establish a dangerous precedent in presidential war-making for his successors to exploit. By repudiating the 60-day restriction on his power, Obama opens the way for future presidents to launch "limited" wars that are far more ambitious than the rather modest Libya incursion. As a former constitutional law professor in Chicago, the president surely must understand the long-term consequences that would follow from eroding the checks on presidential power to wage war. Indeed, such a legacy stands in stark contrast to his assurances on the campaign trail in 2007 that "[t]he 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."

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Cold Case

Why is Ukraine's former president finally being charged over the 11-year-old murder that sparked a revolution?

While political and physical earthquakes in the Middle East and Japan have dominated the international media, the news from Ukraine that former President Leonid Kuchma has been indicted on charges of abuse of power in connection with the murder of investigative journalist Georgy Gongadze has unleashed no-less-profound political tremors that are shaking the foundations of the Ukrainian state and could be giving dictators around the world pause for thought. After all, it's rare for former heads of state to be put on trial for crimes attributed to them during their time in office, and rarer still for them to be tried in their own country.

Gongadze had made a name for himself as a combative investigative journalist and had established one of Eastern Europe's first online newspapers -- Ukrainska Pravda -- as an outlet for publishing information that was routinely censored elsewhere. Gongadze's articles on Kuchma and his entourage of businessmen revealed shady dealings, corruption, and indications of coercion being used to derail political processes to construct a vertical of power for the president. His case has been picked over by experts and lawyers, has been ruled on by the European Court of Human Rights, and is credited with starting the chain of events that snowballed into the 2004 Orange Revolution that removed Kuchma's party from power.

When Gongadze disappeared on Sept. 16, 2000, Kuchma was a year into his second term. The subsequent discovery two months later of Gongadze's headless body buried in a ditch might have remained an unsolved crime -- along with many other suspicious deaths and disappearances of journalists and political figures in Ukraine during the previous few years -- had it not been for the release of secret recordings made in the president's office by a member of his security detail. The tapes recorded Kuchma's conversations with his top officials over several months and featured a number of exchanges in which the president's voice is heard demanding that Gongadze be "taken care of," "kidnapped by Chechens," or "deported to Georgia ... on his ass." Tests conducted in 2002 under the supervision of a former FBI surveillance expert used digital techniques that showed no doctoring had taken place and thus deemed the tapes authentic.

In the early 2000s, the Gongadze affair, along with Ukraine's alleged sale of illegal anti-aircraft tracking systems to Iraq, was a top agenda item in any interaction between Washington and Kiev, and lack of progress on both contributed to the severe cooling of the relationship. Although the Gongadze case triggered the events that brought the Orange government led by Viktor Yushchenko to power, it came no closer to resolution during his presidency. Despite the arrest in March 2005 of three of the policemen who carried out the abduction, investigations stalled and continued to be wrapped up in red tape. It was only in the final year of Yushchenko's presidency that a deputy to the interior minister was apprehended and charged with carrying out the actual killing, albeit with curious omissions that left open the possibility that the client who had ordered the crime was yet to be named.

One of the three people heard in the tapes discussing Gongadze, Interior Minister Yuri Kravchenko, died of apparent suicide with two bullets to his head in 2005, and it was generally believed that the blame for "ordering" the killing would be conveniently placed on him, precluding any further investigation of Kuchma or Volodymyr Lytvyn, current speaker of the parliament and the third man on the tapes. That assumption has proved premature. Kuchma's summons to the prosecutor's office and the charges against him for "exceeding his authority" as president have ripped through the Ukrainian political elite, opening up old wounds and raising unresolved issues.

The news of Kuchma's indictment was so surprising in part because it doesn't fit the current pattern of Ukrainian politics. In his first year as the current president, Viktor Yanukovych, a Kuchma protégé, has presided over the rolling back of democratic freedoms. His government and political cronies stand accused of restricting the freedom of the press, and using the security services for surveillance of students, political activists, and civic groups. He has strong-armed the parliament and recentralized power into the presidency,arrested and detained opposition politicians, manipulated the judicial system, and moved Ukraine away from Europe and closer to Russia.

Yanukovych's claims that he is carrying out reforms where the previous government failed are for the most part unconvincing. A recent reform of the tax code that placed a heavy burden on small- and medium-size businesses while leaving the oligarchs untouched resulted in protests by small- and medium-scale entrepreneurs in Kiev's Independence Square -- made famous during the Orange Revolution. Several protesters are still under arrest, and a high fence has been erected around the square to prevent any more gatherings.

Several members of the former government now in opposition have been accused of corruption and have been arrested, imprisoned, or put under close surveillance. The most prominent of these is former Prime Minister Yulia Tymoshenko, who lost the presidency to Yanukovych in January 2010 by just 3 percentage points. She is perceived as a serious threat to the president and the oligarchs who support him. In mid-December, a criminal case was opened up against Tymoshenko charging misuse of millions of dollars of public funds while in office. Although her case is still under investigation and she isn't under arrest, she was, until recently, prohibited from leaving the country. She arrived in Brussels last month just as the news about Kuchma broke.

Given his record on press freedom, corruption, and abuse of power, it seems strange that Yanukovych would authorize the move against Kuchma. Although there are various theories on the source of the idea to prosecute, there is no doubt that Yanukovych, who controls all branches of government including the judiciary, must have given the go-ahead. The rumor mill in Kiev is rife with suggestions of alternative motives. High on the list is speculation that Yanukovych needs to rescue his reputation and improve Ukraine's image in the West. After Tymoshenko's prosecution was widely viewed as politically motivated by the international community, with shades of Russia's prosecution of Mikhail Khodorkovsky, Yanukovych needed to sacrifice someone from his own circle to prove balance.

Another theory is that it's payback time for Kuchma's shabby treatment of Yanukovych and failure to support him in 2004. Had Kuchma been more forceful in dealing with the "Orange" opposition and not gone along with Western demands for a rerun of the election, Yanukovych as the handpicked successor would have won on the basis of a falsified vote. An additional bonus of going after Kuchma could be to undermine his main supporter and son-in-law, oligarch billionaire Victor Pinchuk, in favor of the oligarchs from Yanukovych's home base, Donetsk. Rinat Akhmetov, a major supporter of Yanukovych's Party of Regions and one of Europe's wealthiest billionaires, is just one of the oligarchs from Donetsk who stands to benefit from the party's continued dominance in politics.

It goes without saying that the tremendous spectacle of Kuchma's trial will provide a convenient diversion for weeks and months, focusing attention away from Ukraine's more mundane problems: rising prices, lack of economic reforms, and deteriorating living standards for ordinary people. (Also worth noting is the fact that the crime Kuchma is charged with, abuse of power, carries a 10-year statute of limitations, so even if convicted, the president may never see the inside of a prison cell.)

Myroslava Gongadze, the widow of the slain journalist, who left Ukraine in 2001 fearing for the safety of her children, sees the case as a chance for Ukraine to "clean house." After 10 years of battling against government coverup and the deliberately opaque processes of the Ukrainian legal system, she considers this a welcome but unexpected turn of events.

"If the Ukrainian authorities are serious about this trial and justice is served, all journalists and activists who struggle for freedom around the world can feel a sense of vindication," she told me. "This is a phenomenal opportunity to clean up the political and judicial system in Ukraine. If the trial is conducted transparently and openly, President Yanukovych could go down in history not as the man who rolled back Ukraine's freedom, but as the one who enabled the setting of a precedent for those who seek justice around the world."

Ukraine has proved once again that it can buck conventional wisdom and defy the policy experts. Twenty years ago no one expected Ukraine to make the break that assured the dissolution of the Soviet Union; seven years ago, no one expected Ukraine's people to come out in their hundreds of thousands in peaceful protest to launch the naming of "color revolutions" around the world. Whatever the outcome of this case and regardless of the motives for launching it, we should watch Ukraine carefully as the place where we can expect the unexpected.