While Obama has hardly gone as far down the road on expanding executive power as Bush did, it is also true that he "consolidated many of the principles of executive power that were first described in the Bush administration," says Ackerman. In effect, "Obama has done nothing to stop the return of another John Yoo." Indeed, with his actions on Libya, Obama has done more than consolidate Bush administration positions -- he has expanded them.
These are negative developments, but it gets worse. In the president's initial letter to Congress, the airstrikes in Libya, "will be limited in their nature, duration, and scope. Their purpose is to support an international coalition as it takes all necessary measures to enforce the terms of U.N. Security Council Resolution 1973." The U.N. resolution specifically did not call for regime change and yet in July 2011, Secretary of Defense Leon Panetta made clear that the U.S. "objective" in Libya "is to do what we can to bring down the regime of Qaddafi." Moreover, as Micah Zenko, a fellow at the Council on Foreign Relations, said to me, NATO forces looked the other way at flights by the French government, among others, that re-supplied the Libyan rebels (in violation of the arms embargo mandated under Section 9 of Resolution 1970); sought to kill Qaddafi via airstrikes (eventually indirectly succeeding); helped to plan the operations that allowed the insurgents to capture Tripoli, and provided sensitive and secret satellite imagery to the rebels. In short, the United States went far beyond the mandate established by the Security Council and in effect lied when claiming that the operations in Libya were simply about protecting civilians. Putting aside the international law implications, the administration adopted a position of regime change of a foreign leader without any approval from Congress.
What is most surprising about the Obama administration's position is that it likely would not have been a heavy lift to get congressional backing for the operations in Libya in the early stages of the air campaign. But by disregarding Congress's role on Libya -- and shifting the intent of the U.S. mission without any congressional input into the decision -- the president has set a new and potentially troubling precedent. In contrast, by seeking congressional authorization Obama would have, ironically, restored some of the balance between the legislative and executive branch on issues of use of American military force.
Running roughshod over Congress has becoming something of a norm within the Obama administration. As one foreign-policy analyst close to the White House said to me "they generally don't do a good job of keeping people in the Hill in the loop on what they are doing. They see congressional oversight as a nuisance -- even within their own party." Another analyst I spoke to had a one-word response to the question of the administration's attitude toward Congress's role in foreign policy: "Dismissive." Whether the lack of proper consultation over the closing of the detainee facility at Guantanamo Bay, the refusal to share with intelligence committees the rationale for targeted killings, or even brief Hill staffers on changes in missile defense deployment, this sort of ignoring of congressional prerogatives has often been the rule, not the exception.
What has been Congress's response to this disregarding of its role in foreign policy decision-making? The usual hemming and hawing, but little in the way of concrete action. During the Bush years, Republicans were more than happy to let the president expand his executive powers when it came to Iraq, Afghanistan, and the global war on terrorism. When Democrats took back the House and Senate from Republicans in 2006, they placed greater scrutiny on the Bush administration's conduct of the war in Iraq -- but still continued to fund the conflict. Even in Washington's highly partisan current environment, little has changed; it's mostly sound and fury signifying nothing.
Republicans eschewed a constitutional confrontation with the White House over Libya, though the House GOP did make a rather partisan effort to defund the Libya operations (a measure that failed) and still today House and Senate members raise their frustrations in committee hearings over their heavy-handed treatment by the White House.
But the actions of some Republicans point in a different direction. Last year, House Armed Services Committee Chairman Buck McKeon actually tried to expand the original Authorization for Use of Military Force that granted U.S. kinetic actions just three days after 9/11 -- which would have actually increased executive war-making power. While some on the Hill have long suspected the constitutionality of the War Powers Resolution, it was one of the few checks that Congress maintained over the president (aside from ability to defund operations, which in itself is a difficult tool to wield effectively). Now they have been complicit in its further watering down.
Aside from Ron Paul, there's been little mention of the president's overreach in Libya by the GOP's presidential aspirants. And why should there be? If any of them become president they too would want to enjoy the expanded executive power that Obama has helped provide for them. Quite simply, in a closely divided country in which each party has a fair shot to win the White House every four years, there is little political incentive for either Democrats or Republicans to say enough is enough.
And with a former constitutional law professor punting on the issue (along with the much abused and maligned Congress), we're now even further from chipping away at the vast power the executive branch has been husbanded on national security issues. In the end, that may be the greatest legacy of the U.S. intervention in Libya.
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