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


Load More Comments