How Not to Declare a War

The Obama administration's legal rationale for bombing Libya suggests that while George W. Bush may be gone, the imperial presidency isn't.

In 2007, the Boston Globe's Charlie Savage asked then-U.S. Sen. Barack Obama whether the president could authorize the bombing of Iran without first seeking congressional authorization in circumstances in which there was no imminent threat to the United States. Obama's answer was clear and succinct: "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." So it was something of a surprise when, on March 19, Obama's administration inaugurated its first uninherited foreign military operation by launching a barrage of Tomahawk missiles against Libya -- whose ruler, Col. Muammar al-Qaddafi, had made plenty of credible threats against his own people, but not against the United States -- without seeking congressional authority to do so. Did Obama rethink the question of war-making without congressional authority?

In a word, yes. Apparently Obama's lawyers told him he could do it, and he liked their advice: "Prior congressional approval was not constitutionally required to use military force in the limited operations under consideration." We know this from the opinion drafted by U.S. Justice Department lawyers on April 1, which was publicly released on April 7, on the legality of military operations in Libya following the U.N. Security Council's go-ahead. The document presents few surprises and looks remarkably like a pair of memoranda -- cited in the new opinion -- that former Assistant Attorney General Walter Dellinger, then head of President Bill Clinton's Office of Legal Counsel (OLC), wrote to authorize the use of military force in Haiti and Bosnia. As such it is typical of the Obama Justice Department: It avoids referring back to the opinions written during the executive-power-expanding heyday of President George W. Bush's first term, while arriving at markedly similar conclusions.

The opinion argues that "the President's legal authority to direct military force in Libya turns on two questions: first, whether United States operations in Libya would serve sufficiently important national interests to permit the President's action as Commander in Chief and Chief Executive and pursuant to his authority to conduct U.S. foreign relations; and second, whether the military operations that the President anticipated ordering would be sufficiently extensive in 'nature, scope, and duration' to constitute a 'war' requiring prior specific congressional approval under the Declaration of War Clause."

The Justice Department concludes that "preserving regional stability" and "maintaining the credibility of United Nations Security Council mandates" are important U.S. national interests that justify the use of military force in Libya. It also finds that the military operations the administration is contemplating in Libya do not constitute "war" in the sense the term is used in the Constitution. Obama's statement that U.S. involvement is simply intended to "set the stage" for operations that would then be borne substantially by American allies is repeated, the limited parameters of the Security Council's resolution are recapped, and the vague expectation that the operations will be short-lived is put forward.

The memorandum's brevity -- a scant 14 pages -- and the stark limits of its analysis are remarkable considering the constitutional issues raised by the question it asks: Was the president entitled to strike Libya without congressional authorization? The OLC opinion says so, but dodges this constitutional question by breezily redefining national interests and presuming a hasty end to the conflict. But the Justice Department lawyers' facile treatment won't be the last word on the subject. Under the War Powers Resolution, which Congress passed in 1973, the president has 60 days to seek formal congressional authorization for any use of armed force abroad. For now, the OLC opinion skirts around the issue -- it treats the law, disingenuously, as an implicit recognition of the president's right to act without prior congressional approval. But when those 60 days are up, the Obama administration will have to decide just what kind of presidency it is.

To take the OLC claims one at a time: Did the Libya crisis affect the national interests of the United States in a way that justified the use of military force? This test is a vague one: The "national interest" is the subject of a constant political tug of war in the United States, defined differently from election to election. Here, the OLC tells us that the United States has an interest in "regional stability" -- in the case of Libya and the rest of North Africa and the Middle East, the avoidance of excessive violence targeting civilians that could drive "thousands of additional refugees across Libya's borders." But while this may be a legitimate threat for nearby U.S. allies such as Italy and Egypt, it is difficult to see how it poses one to the United States. And this definition of national interest -- as an immigration problem -- is a far as the OLC is willing to go. The argument that it fashions is a sort of second tier national interest, derivative of the concerns of long-time allies. That's an extremely low threshold.

But even so, some inconvenient facts get airbrushed away here. The opinion fails to note that Obama's national security advisor, Thomas E. Donilon, had told reporters more than two weeks earlier that the developments in Libya did not affect a vital strategic interest of the United States. The Obama administration changed its tune, of course, in the days that followed, embracing a plan of limited intervention in Libya. But none of the apparent causes of that about-face -- the voiced willingness of NATO allies to lead the military action, the likelihood of a Security Council resolution, and the fear that absent immediate action a bloodbath was likely to occur when Qaddafi-loyal forces assaulted and overran the city of Benghazi -- amount to a reconsideration of Donilon's assessment, however compelling they may be on their own terms. The OLC's "national interest" test, then, would seem to mean little more than that the president wants to use military force.

The second question is whether the Libya engagement is a "war" in the constitutional sense. It's clear that the use of force to repel an attack or an individual riposte does not necessarily constitute a "war." But as is the case with the "national interest" test, the most powerful evidence against the OLC's conclusion comes from within the administration. Speaking before a congressional committee on March 2, Defense Secretary Robert Gates decried the "loose talk" then circulating in Washington about the establishment of a "no-fly zone" over Libya. "Let's just call a spade a spade," he said. "A no-fly zone begins with an attack on Libya to destroy the air defenses. That's the way you do a no-fly zone." Speaking a day earlier before a Senate committee, Centcom commander Gen. James Mattis delivered the same message in response to queries about a no-fly zone: "My military opinion is, sir, it would be challenging," he said. "You would have to remove the air defense capability in order to establish the no-fly zone so it -- no illusions here, it would be a military operation. It wouldn't simply be telling people not to fly airplanes."

It's clear that both Gates and Mattis were concerned about stretching U.S. military assets to address a third war, in addition to those in Iraq and Afghanistan. And in fact, the military activities authorized by the Security Council -- and later put into effect -- were far more aggressive than those on which Gates and Mattis originally commented. Still, the OLC opinion grounded its determination that the operations were "not war" on prior approval of much more limited no-fly zone operations, while ignoring Gates's and Mattis's statements.

"[T]he line between war and lesser uses of force is often elusive, sometimes illusory, and the use of force for foreign policy purposes can almost imperceptibly become a national commitment to war," as the late Louis Henkin put it. Viewed retrospectively, the U.S. military missions in Somalia, Haiti, and Bosnia all seem like tough cases in which the authority of U.S. action could have benefited from proper debate and clear congressional action. No one ever intends to get into an interminable quagmire, after all. There is a normal tendency at the start of any military engagement to expect it to be resolved quickly, favorably, and cheaply. The process of public debate and congressional consultation is intended to impose at least something of a check on this kind of wishful thinking: to ensure that there is a public acceptance of potential costs and risks in the event of war. It is impossible to judge with any certainty how the Libya operation will progress, but at least at this stage the Obama administration's assessments seem optimistic.

Although bombs may have already fallen on Libya, it's not too late for the Obama administration and Congress to discharge their constitutional obligations, however belatedly. The question will only become more acute the longer the clock ticks. In mid-May, the 60-days latitude granted by the War Powers Resolution will expire. The president then must either secure Congress's blessing or disengage from the operations within the following month. The OLC opinion doesn't tip the president's hand on this question -- he could turn to Congress or he could push ahead in Libya with an unambiguously "imperial" view of presidential war powers. Either way, the role of Congress in authorizing the Libya operations, and the wisdom of continuing those operations, will then be front and center.

SAUL LOEB/AFP/Getty Images


…And Keep It Shut!

What parts of the government should be permanently furloughed?


By Peter Galbraith

At the end of the Cold War, Senator Daniel Patrick Moynihan, my friend and one-time boss, proposed eliminating the Central Intelligence Agency. The CIA, he said, told us everything we needed to know about the Soviet Union, except that it was going to disappear. This omission led to a trillion dollars in unnecessary defense expenditures in the 1980s -- and that was when a trillion dollars was considered to be a lot of money. Moynihan also noted that CIA analysts -- taking at face value East Germany's implausible valuation of its currency at par with that of the West -- once declared that East Germany had a higher standard of living than the Federal Republic. The Agency seemed not to notice that there was no East-bound traffic across the Wall. More recently, the CIA contributed to a trillion-dollar decision to invade Iraq when it asserted Saddam Hussein's possession of non-existent weapons of mass destruction.

The CIA includes many very smart people, some of whom take enormous risks for a country. But I would urge caution about blindly accepting its conclusions. As a Russian-speaking high school student, I spent 11 weeks driving through the Soviet Union, staying at campgrounds with ordinary Russians. The country I saw was no competitor for the United States, and this simple on-the-ground experience better informed my view of Soviet power than the highly classified CIA analysis to which I had access as a government official. As ambassador to Croatia during the Balkan Wars, I made extensive use of CIA intelligence and analysis. But, at the key moment, the CIA grossly over-estimated the military capabilities of the Serbian side. They had never been to the Serb-held parts of Croatia or Bosnia, and I had. Fortunately, the Clinton administration did not rely on the CIA's analysis, and we were able to negotiate an end to the Croatian and Bosnian Wars.

The CIA does valuable work and I would not shut it down. Instead, I would urge skepticism about some of its conclusions. Based on past experience, this would save far more money than is at stake in the current budget battles.

Peter W. Galbraith is Former U.S. ambassador to Croatia and former U.N. Deputy Special Representative for Afghanistan.

The Defense Establishment

By Thomas E. Ricks

West Point
The Naval Academy
The Air Force Academy
The Army War College
The Naval War College (except the strategy department)
The Air War College
10 percent of all generals' jobs
10 percent of all civilian jobs in the Defense Department
25 percent of all current contractors' jobs
50 percent of all consulting contracts
75 percent of congressional staffs

Thomas E. Ricks is Senior fellow at the Center for a New American Security and blogger for Foreign Policy.


By Danielle Pletka

My nominee not to come back is the U.S. Agency for International Development. Created as a temporary agency in the 1950s and formalized in 1961 as USAID, it lingers on having spent a fortune with results that are so little commensurate with outlays, it is stunning. Billions in Egypt, and yet there are few democratic institutions -- because that wasn't part of the mission. Ditto Jordan, the Palestinian Authority, Tunisia, and Lebanon.

Yes, there is the terrific Office of Transitional Initiatives that has stood out. But overall, too many USAID officials over the years have refused to prioritize what America prioritizes: freedom, markets, rule of law. (They'll tell you that's because of congressional earmarks, but it's not true.) Too many have viewed their agency as a charity, not to be sullied by policy demands or U.S. interests. Too many care only about outlays and not about performance, metrics, and success. For USAID, spending has been job one. Achieving, less so. Of course there are great people at the agency who work for mediocre salaries in tough parts of the world. Then again, there are many in wonderful, private charitable organizations that do the same. USAID should be rolled into the State Department completely. The mission that matters -- emergency aid, humanitarian priorities -- would continue, and the rest would be carried out in accordance with the policies and priorities of the president of the day.

Danielle Pletka is vice president for foreign and defense policy studies at the American Enterprise Institute.

Veterans Affairs

By Andrew Exum

This is going to read as being mildly heretical since I am myself a veteran and also happen to think the folks at the Veterans Affairs Administration do a great job. But as veterans from World War II, Korea, and Vietnam depart this Earth, we are likely to be left with a much smaller group of veterans who, thanks to the life-saving technologies developed prior to and during the wars in Iraq and Afghanistan, might need less care in terms of quantity but more specialized care. So it might make sense to get rid of the old brick-and-mortar VA of the 20th century and replace it with something more akin to an HMO that allows veterans of this generation to make use of the best care available to them in our nation's private health care system.

Andrew Exum is a fellow at the Center for a New American Security at blogger at Abu Muqawama.

Ground Forces

By Benjamin H. Friedman

We could do without much of the nearly $700 billion we annually spend in the name of defense. First on the chopping block should be the Army and Marine Corps. Even counterinsurgency enthusiast Defense Secretary Robert Gates says that we are unlikely to soon repeat our nation-building misadventures in Iraq and Afghanistan. Shedding our tendency to conflate counterterrorism and occupational warfare would allow us to reverse the recent growth in the ground forces, saving almost $ 9 billion annually, according to the Congressional Budget Office. Actually, as Chris Preble and I write in a recent Cato Institute report, we should go further, cutting roughly one-third from those services, saving almost $300 billion in the next decade. On top of these initial savings, this cut would discourage us from wasting blood and treasure in fighting other people's civil wars.

Benjamin H. Friedman is a research fellow in defense and homeland security studies at the Cato Institute.

The Farm Service Agency

By Michael Clemens

Let's cut part -- not all -- of the Farm Service Agency (FSA) of the U.S. Department of Agriculture. Though it does other useful things, each year the FSA spends $10 to $30 billion of taxpayers' money on outright cash gifts to farms, in good times and bad. These gifts, owing more to the farm lobby's power than to clear economic need, harm U.S. taxpayers, U.S. food consumers, and overseas food producers.

Michael Clemens is a senior fellow at the Center for Global Development

Missile Defense

By Joseph Cirincione

Cut the Missile Defense Agency. The military services would do a better job determining what they need, what works, and how much to spend. The MDA functions primarily as an in-house lobbyist for systems the services have not asked for and do not need. We could save half of the over $10 billion budgeted this year for missile defense by eliminating this redundant agency and the programs it promotes.

Joseph Cirincione is president of the Ploughshares Fund.

Mideast Peace Envoys

By Stephen M. Walt

I'll nominate Special Envoy for Middle East Peace George Mitchell and his "peacekeeping" entourage, which don't seem to have accomplished anything (and may have made things worse). I believe I blogged that it was time for him to resign more than a year ago, and nothing has happened since to change my mind on that score.

Stephen M. Walt is Robert and Renee Belfer professor of international relations at Harvard University and blogger for Foreign Policy.

Don't cut, expand

By Michael Lind

The premise of the question is wrong. While there may be a few small, wasteful discretionary programs, in general the federal government is too small, not too large, and should be expanded.

At the price of inefficiency, things which could be done more simply and efficiently by the federal government have been delegated to the states or subsidized private corporations. For example, hybrid federal-state programs like Medicaid and unemployment insurance are threatened by unstable state revenues, unlike purely federal programs like Social Security. Tax-favored private retirement savings programs like IRAs and 401k's are riskier than Social Security and allow brokers to fleece unsuspecting clients with their fees. These programs should be shrunk and Social Security should be expanded. Medical cost inflation threatens both the efficient Medicare program and the dysfunctional, employer-based health insurance sector. The solution is cost controls, not rationing access to health care by Americans.

In a rational country, the federal government would take over functions that never should have been shared with the states or off-loaded onto the private sector. Higher federal taxes would be offset somewhat by lower state taxes and the abolition of tax subsidies for private insurance and private retirement savings.

In short, the federal government needs to be strengthened and expanded, not vandalized and gutted.

Michael Lind is policy director of the New America Foundation's economic growth program.