Up in Smoke

      Residents cheer as foreign journalists arrive in Zawiya, Libya, 30 miles (50 kilometers) west of Tripoli

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.

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. 

Obama probably could have secured congressional authority for his operations in Libya at the outset of the conflict — a fact suggested by resolutions adopted before the commencement of hostilities encouraging him to act — but he opted not to do so. Instead he relied on a memorandum authored by the OLC's Caroline Krass. Following carefully in the footsteps of the earlier analysis by Dellinger, Krass argued that "preserving regional stability" in North Africa and "maintaining the credibility of United Nations Security Council mandates" were important national interests of the United States that warranted the Libya operations. She also concluded that the nature of the operations — involving no deployment of ground forces and only a limited measure of U.S. engagement, in concert with NATO and other allies who would bear the brunt of the effort — supported a conclusion that this was not what the Constitution meant by "war."

That second point is, of course, by far the more problematic, considering the notorious difficulty at the outset of any conflict of gauging the level of effort ultimately required. However, on this point, Krass was borne out by the facts: Although the United States took the lead in the first weeks, its role did in fact recede as the conflict wore on, with France and Britain taking center stage. Disorganized rebels assembled under the banner of the National Transitional Council, which steadily expanded its authority over the bulk of Libya's territory and accumulated international recognition.

However, the first prong of the Krass analysis couldn't be more doubtful. The notion that "preserving regional stability" in North Africa was a matter of U.S. national interest was squarely rejected by Defense Secretary Robert Gates and other senior Pentagon brass and can't be squared with prior authoritative statements of policy towards the region; the best argument that Krass could muster was the suggestion that Italy and other U.S. allies in southern Europe would have to cope with waves of refugees from Libya. Recent reports have suggested, moreover, that Krass's criteria were marginal at best in the actual decision-marking. As Rolling Stone's Michael Hastings reported in a recent lively portrait of the Obama administration's internal debate over Libya, concerns that a Qaddafi victory would deflate the Arab Spring movement, coupled with a sense that the revolutionaries' success could be ensured with a minimal commitment of blood and treasure, was at the core of Obama's call. There is thus a disconnect between the conjectural reasons used to justify the OLC memo and the actual reasons that reportedly drove Obama's decision to support the venture.

Tags: barack obama, gaddafi, libya, lindsey graham, muammar el-qaddafi, nato, scott horton

    • 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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