As Muammar al-Qaddafi's corpse rotted in a Misrata meat locker, Barack Obama's gambit on Libya was being widely acclaimed in Washington as a foreign-policy success -- and a politically daring one. The U.S. president's own secretary of defense and key military advisors, after all, were against the operation; many of his Republican critics, meanwhile, had advocated for a more forward American military role, reminiscent of Iraq. Spurning both, Obama opted for a carefully calibrated effort that emphasized the support of key allies, enabling a popular uprising that steadily peeled away support from a loud but teetering dictator. In the end, the effort cost no American lives and less than $2 billion, which Sen. Lindsey Graham reports the Libyans are willing to repay. The future remains unclear about the sort of government Libya will see in Qaddafi's wake -- but it's quite clear that the operation burnished the reputation of the United States with Libya's population, as was evident by the American flags hoisted in Benghazi and Tripoli last week. Compared with the cost and doubtful outcomes in both Iraq and Afghanistan, the Libya campaign looks -- for now, at least -- like a stroke of genius.
But seen through the lens of the law, the victory is a distinctly Pyrrhic one. When he was elected, Obama promised an America that, in a sharp break from its very recent past, would lead by example and reinvigorate its respect for the rule of law, both at home and on the international stage. Obama's conduct of the war in Libya points to a White House that is perhaps more cautious than its immediate predecessor in foreign military exploits, but just as assertive in the area of executive prerogative. It is a gloomy precedent -- and one that will make necessary humanitarian actions in crises such as Syria's less, not more, likely to happen.
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The Libya operations have to be assessed at two separate levels of legality. The first is domestic and involves the constitutional interplay between the executive branch and Congress in the realm of war powers. American legal thinking about the respective roles played by Congress and the president can be divided roughly into three camps. The first and more conservative view, dominant among constitutional scholars, holds that the president has the power to respond to an attack on his own or to take urgent steps to defend the country, but that he must secure Congress's consent in some form before using U.S. arms in hostilities abroad on a more sustained basis. To protect its rights against encroachment by the executive, Congress enacted the War Powers Resolution in 1973. Compliance with or circumvention of the resolution continues to this day to be a key field of tension between the White House and Congress.
The second, traditionally liberal view, advanced by Democratic administrations going back perhaps as far as Harry Truman, was presented most concretely in a series of memoranda authored by Walter Dellinger, head of the Justice Department's Office of Legal Counsel (OLC) in Bill Clinton's administration. Dellinger chose not to tackle the traditionalists head-on. Rather, he suggested that there was a species of conflict short of war that was not really covered by the obligation to consult Congress. Dellinger argued that the president could act unilaterally when there was some compelling national interest that militated for action and the deployment would not amount to war in the sense discussed in the Constitution.
The third perspective, associated with Berkeley law professor and George W. Bush-era OLC staffer John Yoo and a number of other neoconservatives, argues that the traditional view is a fundamental misunderstanding of the constitutional order and that the president always has the authority to act unilaterally. The most authoritative statement of this perspective may well be in the OLC memorandum that Yoo wrote to justify Bush's decision to commence hostilities in Iraq in 2003. It's noteworthy that notwithstanding Yoo's opinion, Bush still felt compelled to seek specific votes in Congress to authorize military action in Iraq and Afghanistan. Having obtained these votes, Bush never had cause to put the Yoo theorem to the test. But Yoo's argument does present the ultimate legal pushing of the envelope in the area of presidential war powers.
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