This month marks the one-year anniversary of the onset of U.S. military engagement in the Libyan civil war. While the verdict is still out on the long-term effects of the conflict for U.S. interests in the region, it's closer to home where one can point to the war's greater lasting impact -- namely in further increasing the power of the executive branch to wage war without congressional authorization. But don't expect to hear much about that issue on the campaign trail this election year. Rather the erosion of congressional oversight of the executive branch's war-making responsibilities has been something of a bipartisan endeavor -- and one that is unlikely to end any time soon.
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It might seem like a bit of ancient history now, but one of the more creative arguments to come out of the U.S. military intervention in Libya was the Obama administration's assertion that the war did not actually represent "hostilities." Indeed, according to the president's argument to Congress, U.S. operations in Libya "do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops" -- thus making them something less than war. On the surface this appears patently absurd. The United States was flying planes over Libyan air space and dropping bombs. Missiles were being fired from off-shore. An American military officer (Adm. James Stavridis) commanded the NATO effort. There were reports of forward air controllers on the ground spotting targets for U.S. bombers. In all, NATO planes flew more than 26,000 sorties in Libya, nearly 10,000 of which were strike missions. By what possible definition is this not considered "hostilities"?
As it turns out the ambiguity over whether the war represented "hostilities" is one codified in U.S. law -- namely the War Powers Resolution (WPR). Under the provisions of the WPR the President was required to notify Congress within 48 hours of the beginning of U.S. military involvement. He then had 60 days to receive authorization from Congress and if he failed to do he would have 30 days to end the fighting. (Of course, if U.S. military actions do not rise to the level of "hostilities," then the president does not have to go through this rigmarole and receive congressional approval.)
Now on the surface, such an elastic view of what the word hostilities means is hardly unusual. Indeed, it is rather par for the course in discussions of the War Powers Resolution. In 1975, the Ford administration claimed that "hostilities" only refers to a scenario in which U.S. forces are "actively engaged in exchanges of fire with opposing units." Similar efforts at defining down hostilities were attempted by the Carter, Reagan, and Clinton administrations when they sought to use military force. Still, these generally were in reference to peacekeeping missions like in Lebanon and Bosnia -- not offensive operations like those waged in Libya.
In a political vacuum, Obama's stance on "hostilities" in Libya might represent the traditional push and pull of executive-legislative branch disagreements about presidential war-fighting prerogatives.
But of course, on this issue we are far from being in a political vacuum. Obama's broadening of executive power comes with the backdrop of the George W. Bush administration's efforts to expand the president's ability to wage war. Indeed, the position taken by the Obama administration bears uncomfortable similarities to the one taken by John Yoo when he served at the Justice Department and argued -- in the wake of 9/11 -- that the Constitution granted the president practically unquestioned executive power to wage war. Yet, even Bush sought congressional approval for military actions in Afghanistan and Iraq; Obama didn't bother to do the same for Libya. In addition, Obama also overruled the opinion of his own Office of Legal Counsel (OLC) on the question of whether the president must abide by the War Powers Resolution in regard to the Libyan intervention. The OLC said he did; the White House assembled legal opinions that said he didn't -- and the latter view won out. As Bruce Ackerman, a law professor at Yale University, noted at the time, "Mr. Obama's decision to disregard that office's opinion [the OLC] and embrace the White House counsel's view is undermining a key legal check on arbitrary presidential power."
So at a time when the door has been opened rather wide on unaccountable war-waging by the executive branch -- with minimal legislative checks and balances -- the Obama administration has opened it even further. What is perhaps most surprising is that it is being promulgated by a president who pledged as a candidate to put an end to such practices.
As Ackerman said to me, Obama came into office with a golden opportunity to reestablish some modicum of restraint over the actions of the executive branch in the pursuit of national security. Ironically, in a Boston Globe questionnaire in December 2007, Obama specifically rejected the argument that he used, in part, to justify going around Congress on Libya. "The President," wrote candidate Obama, "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."
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