The Illegal War in Libya

"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" -- candidate Barack Obama, December, 2007

"No more ignoring the law when it's inconvenient. That is not who we are. . . . We will again set an example for the world that the law is not subject to the whims of stubborn rulers" -- candidate Barack Obama, August 1, 2007

When President Obama ordered the U.S. military to wage war in Libya without Congressional approval (even though, to use his words, it did "not involve stopping an actual or imminent threat to the nation"), the administration and its defenders claimed he had legal authority to do so for two reasons: (1) the War Powers Resolution of 1973 (WPR) authorizes the President to wage war for 60 days without Congress, and (2) the "time-limited, well defined and discrete" nature of the mission meant that it was not really a "war" under the Constitution (Deputy NSA Adviser Ben Rhodes and the Obama OLC). Those claims were specious from the start, but are unquestionably inapplicable now.

From the start, the WPR provided no such authority. Section 1541(c) explicitly states that the war-making rights conferred by the statute apply only to "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." That's why Yale Law Professor Bruce Ackerman -- in an article in Foreign Policy entitled "Obama's Unconstitutional War" -- wrote when the war started that the "The War Powers Resolution doesn't authorize a single day of Libyan bombing" and that "in taking the country into a war with Libya, Barack Obama's administration is breaking new ground in its construction of an imperial presidency."

Ackerman detailed why Obama's sweeping claims of war powers exceeded that even of past controversial precedents, such as Clinton's 1999 bombing of Kosovo, which at least had the excuse that Congress authorized funding for it: "but Obama can't even take advantage of this same desperate expedient, since Congress has appropriated no funds for the Libyan war." The Nation's John Nichols explained that Obama's unilateral decision "was a violation of the provision in the founding document that requires the executive to attain authorization from Congress before launching military adventures abroad." Put simply, as Daniel Larison concluded in an excellent analysis last week, "the war was illegal from the start."

But even for those who chose to cling to the fiction that the presidential war in Libya was authorized by the WPR, that fiction is now coming to a crashing end. Friday will mark the 60th day of the war without Congress, and there are no plans for authorization to be provided. By all appearances, the White House isn't even bothering to pretend to seek one. A handful of GOP Senators -- ones who of course showed no interest whatsoever during the Bush years in demanding presidential adherence to the law -- are now demanding a vote on Libya, but it's highly likely that the Democrats who control the Senate won't allow one. Instead, the law will simply be ignored by the President who declared, when bashing George Bush on the campaign trail to throngs of cheering progressives: "No more ignoring the law when it's inconvenient. That is not who we are."

One of the questions often asked during the Bush years was why Bush/Cheney were so brazen in violating Congressional statutes given that the post-9/11 Congress would have given them whatever authority they wanted to do whatever they wanted; the answer was clear: because they wanted to establish the "principle" that they had the power to do anything without getting anyone's permission, including the American people's through their Congress or the courts ("These decisions, under our Constitution, are for the President alone to make," decreed John Yoo in his iconic September 25, 2001 memo).

The same is true of Obama here. There is little doubt that Congress would subserviently comply -- as it always does -- with presidential demands for war authorization. The Obama White House is simply choosing not to seek it because Obama officials want to bolster the unrestrained power of the imperial presidency entrenched by Dick Cheney, David Addington and John Yoo, and because that route avoids a messy debate about purpose, cost and exit strategy. Instead -- just as Bush/Cheney invented theories to justify even direct violation of Congressional law (e.g., the AUMF implicitly allowed us to eavesdrop on Americans without warrants in violation of FISA) -- the Obama administration is now, as The New York Times put it, "trying to come up with a plausible theory for why continued participation by the United States does not violate the law." Those potential "theories" -- that the U.S. can stop bombing for a moment, claim the war ended, and then resume bombing on the basis that the momentary pause reset the WPR clock, or that NATO's command means the U.S. is not really at war -- are ludicrous on their face, but highlight how eager the White House is to avoid seeking a vote that might dilute the President's seized unilateral war-making power (Ackerman and Yale Professor Oona Hathaway have a Washington Post Op-Ed today deriding those absurd theories).

It was equally clear from the start that this Orwellian-named "kinetic humanitarian action" was, in fact, a "war" in every sense, including the Constitutional sense, but that's especially undeniable now. While the President, in his after-the-fact speech justifying the war, pledged that "broadening our military mission to include regime change would be a mistake," it is now clear that is exactly what is happening. "Regime change" quickly became the explicit goal. NATO has repeatedly sought to kill Gadaffi with bombs; one attack killed his youngest son and three grandchildren and almost killed his whole family including his wife, forcing them to flee to Tunisia. If sending your armed forces and its AC-130s and drones to another country to attack that country's military and kill its leader isn't a "war," then nothing is.

It's extraordinary how rapidly and brazenly the initial claims about the war were discarded. The notion that we were simply going to establish a no-fly zone to protect civilians in Benghazi behind the leadership of the Arab League -- remember all that? -- is a faded, laughable memory. Former U.N. Secretary General Kofi Annan, originally supportive of the mission in Libya, explained the obvious about NATO in an interview this week: "they've crossed a line and are now part of the civil war and fighting on one side of the civil war." One can now say many things about this war; that it is "time-limited, well defined and discrete" is most assuredly not among them.

The excuses offered to justify or excuse all of this are unpersuasive in the extreme. Some point out that Congress is content with having the President seize its war-making powers; that's true, but the same was true of Congress under both parties in the face of Bush/Cheney radicalism (Dan Froomkin wrote in 2007 that "historians looking back on the Bush presidency may well wonder if Congress actually existed"). Nobody back then suggested this inaction excused Bush's lawbreaking. That Congress acquiesces simply means -- like Obama's protection of Bush crimes -- that the President will get away with this lawbreaking, not that it's justified.

Nor do the instances of past illegal wars provide any excuse. Past lawlessness does not justify current lawlessness. Beyond that, Professors Ackerman and Hathaway argue today that Libya will create an all new and dangerous precedent for the imperial presidency:

Once Obama crosses the Rubicon, future presidents will simply cite Libya when they unilaterally commit America to far more ambitious NATO campaigns.

Make no mistake: Obama is breaking new ground, moving decisively beyond his predecessors. George W. Bush gained congressional approval for his wars in Afghanistan and Iraq. Bill Clinton acted unilaterally when he committed American forces to NATO's bombing campaign in Kosovo, but he persuaded Congress to approve special funding for his initiative within 60 days. And the entire operation ended on its 78th day.

In contrast, Congress has not granted special funds for Libya since the bombing began, and the campaign is likely to continue beyond the 30-day limit set for termination of all operations. . . .

If nothing happens, history will say that the War Powers Act was condemned to a quiet death by a president who had solemnly pledged, on the campaign trail, to put an end to indiscriminate warmaking.

That the American people must approve of wars through their Congress is no legalistic technicality (and as my very British NYU Criminal Law Professor, Graham Hughes, dryly said of his arrival in the U.S. and initial exposure to TV debates about criminal defendants "getting off on technicalities": "I had never before been in a country where people refer to their Constitution as a 'technicality'"). The whole point of the Article I, Section 8 requirement is that democratic debate and consent is necessary to prevent Presidents from starting self-aggrandizing wars without real limits on duration, cost and purpose; the WPR was enacted after the Vietnam debacle to prevent its repeat.

This war, without Congressional authorization, is illegal in every relevant sense: Constitutionally and statutorily. That was true from its start but is especially true now. If one wants to take the position that it's not particularly important or damaging for a President to illegally start and sustain protracted wars on his own, then it's hard to see what would be important. That is the ultimate expression of a lawless empire.


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