How Not to Declare a War

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.

Tags: barack obama, boston globe, bush, centcom, charlie savage, gaddafi, george w. bush, iran, james mattis, libya, muammar el-qaddafi, obama

    • Scott Horton
    • Scott Horton is a contributing editor at Harper’s magazine, where he covers legal and national security issues. As a practicing attorney, Horton has focused on investment in emerging markets. He is also a life-long human rights advocate and serves as a director of the Moscow-based Andrei Sakharov F...

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