Sunday, March 20, 2011

The constitution and our intervention in Libya

We're now attacking military targets in Libya. I think the cause is just, but of course the outcome is impossible to predict.

What is most striking is that we have entered the fighting without any direct authorization from Congress. There is no declaration of war, and there is no "specific statutory authorization," with which we began the war in Afghanistan and both our recent wars with Iraq. And there is, as far as I'm aware, no substantial objection to this from Congress -- even though apparently public support for this fighting is quite mixed.

I doubt that the Framers of our Constitution intended to grant the President the power to initiate armed conflict on his or her own. Glenn Greenwald in Salon reports that both Obama and now-Secretary of State Hillary Clinton, as Presidential candidates, appeared to say that the President could initiate defensive fighting -- and, as Greenwald says, Libya isn't that. But I think the fact that Obama has acted as he has, and with as little Congressional opposition as he's faced, confirms that today the President does indeed have some power to initiate armed conflict. If we understand the law not as its words' intrinsic meaning or its drafters' intentions, but as what those who apply the law have actually made of it -- that is, if we are "legal realists" -- then this is the law, the constitutional law, today.

Exactly how much power to initiate armed conflict the President has isn't clear, but it is clear that there are limits on this power. Our land wars of the past 20 years have all been authorized by Congress, and I don't see a basis in current practice for saying that the President can start a war of that dimension on his or her own. But the fighting in Libya, or at least our part in it, is much more restricted: it involves no U.S. soldiers on the ground (and President Obama assures us that won't change), and perhaps involves only a fairly brief series of attacks on well-specified military targets. How much more than this small-scale engagement the President currently has legal power to initiate we do not know; but this much, I think, is within his or her present powers.

That doesn't mean that we can go on attacking Libyan targets indefinitely. We have a statute on the books, the War Powers Resolution, which makes clear that this attack must end within 60 days (with a 30-day extension in some circumstances) unless it is affirmatively authorized by Congress. Those 60 days are sometimes described as a "blank check." I don't think they are a blank check -- that is, I don't think the President can do just anything for 60 days, though I do think he or she can do what Obama has done so far. But at the 60-day limit, this fighting must either be approved by Congress or ended. It is true that that rule has on one occasion been unambiguously violated -- by President Clinton, in another good cause, the 1999 bombing campaign against Yugoslavia to end its oppression of Kosovo -- and it's also true that Presidents and Congresses have pushed back and forth on what the War Powers Resolution required on a number of other occasions. But the War Powers Resolution is still on the books, and I don't think we have an accumulated practice that indicates it's no longer really binding.

The rule that Presidents can initiate some level of small-scale military engagement may be wise or unwise. It also may or may not be retained; the accumulated practice that is its basis could be altered. But I think it is now the law, and we will now have another occasion to view its consequences. I hope they will be good.


  1. We are not in this unilaterally but as part of a joint mission authorized by the UN Security Council's vote to establish a no-fly zone over Libya. Could it be said that by virtue of our international commitments (and Congress's ratification of our membership in the UN and various other coalitions) that the authority to act in concert with those forces has been delegated to the executive branch?

  2. It may be no accident that none of our presidents have asked congress to declare war since they have had nuclear capability, although they had been involved in nine conflicts, by my count, since then. Who needs to declare war when you have an A Bomb?

  3. Thanks for both these thoughtful comments -- sorry I've been away from my blog for a couple of weeks and didn't see them right away.

    I think it is true that the A-bomb contributed to the sense that the President had to be supreme in all matters military. The person who presses the button does have horrifying and immense power -- and also has the dreadful responsibility of responding as quickly as ICBM's can necessitate if someone else pushes, or seems to be pushing, their button. But it's also true that no one declares war nowadays, not us, and not anyone else either (with the exception of Al Qaeda, which did declare war on us). And in fact the first undeclared war by the U.S. -- though it did have statutory authorization -- began before 1800. So this is a practice with deep roots in US and international behavior.

    The idea that we granted the President the power to go to war when we ratified the UN Charter is an interesting one. I believe President Truman used this argument in going to war in Korea -- a war authorized by the Security Council but never, in so many words, by Congress. But it's a troubling idea on three grounds. First, we ratify treaties solely by Presidential signing and Senate confirmation; the House of Representatives doesn't vote on this, whereas it must vote (as must the Senate) either for a declaration of war or for a statutory authorization of war. So "the people" are that much less involved in the decision -- though it's true that the House and Senate both vote for various related matters, e.g. our paying our UN dues, so the House isn't shut out by any means. Second, the UN obviously isn't us. It's one thing to see the UN as marking out the boundaries on what we can choose to do as a nation; it's another to see it as able to take us into war without the constitutional processes that would normally be required. Third, I don't think the UN itself normally - if ever - ventures to order nations into war, and I'd be very surprised if the text of the Security Council's Libya resolution directed any nation to enforce its provisions by the use of military means, and even more surprised if the resolution directed any nation to use military force without following its own normal constitutional processes. All of which is a long way of saying that if President Obama has the authority to take us into small military engagements, then the fact that he did so pursuant to Security Council resolution provided a very good reason for his decision; but if he didn't have such authority by virtue of our constitution, I'd be very uneasy about saying that he acquired it because he acted consistently with the Security Council.