President Obama's real constitutional overreach was Libya, not health care.
This month marks the one-year anniversary of the onset of U.S. military engagement in the Libyan civil war. While the verdict is still out on the long-term effects of the conflict for U.S. interests in the region, it’s closer to home where one can point to the war’s greater lasting impact — namely in further increasing the power of the executive branch to wage war without congressional authorization. But don’t expect to hear much about that issue on the campaign trail this election year. Rather the erosion of congressional oversight of the executive branch’s war-making responsibilities has been something of a bipartisan endeavor — and one that is unlikely to end any time soon.
It might seem like a bit of ancient history now, but one of the more creative arguments to come out of the U.S. military intervention in Libya was the Obama administration’s assertion that the war did not actually represent "hostilities." Indeed, according to the president’s argument to Congress, U.S. operations in Libya "do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops" — thus making them something less than war. On the surface this appears patently absurd. The United States was flying planes over Libyan air space and dropping bombs. Missiles were being fired from off-shore. An American military officer (Adm. James Stavridis) commanded the NATO effort. There were reports of forward air controllers on the ground spotting targets for U.S. bombers. In all, NATO planes flew more than 26,000 sorties in Libya, nearly 10,000 of which were strike missions. By what possible definition is this not considered "hostilities"?
As it turns out the ambiguity over whether the war represented "hostilities" is one codified in U.S. law — namely the War Powers Resolution (WPR). Under the provisions of the WPR the President was required to notify Congress within 48 hours of the beginning of U.S. military involvement. He then had 60 days to receive authorization from Congress and if he failed to do he would have 30 days to end the fighting. (Of course, if U.S. military actions do not rise to the level of "hostilities," then the president does not have to go through this rigmarole and receive congressional approval.)
Now on the surface, such an elastic view of what the word hostilities means is hardly unusual. Indeed, it is rather par for the course in discussions of the War Powers Resolution. In 1975, the Ford administration claimed that "hostilities" only refers to a scenario in which U.S. forces are "actively engaged in exchanges of fire with opposing units." Similar efforts at defining down hostilities were attempted by the Carter, Reagan, and Clinton administrations when they sought to use military force. Still, these generally were in reference to peacekeeping missions like in Lebanon and Bosnia — not offensive operations like those waged in Libya.
In a political vacuum, Obama’s stance on "hostilities" in Libya might represent the traditional push and pull of executive-legislative branch disagreements about presidential war-fighting prerogatives.
But of course, on this issue we are far from being in a political vacuum. Obama’s broadening of executive power comes with the backdrop of the George W. Bush administration’s efforts to expand the president’s ability to wage war. Indeed, the position taken by the Obama administration bears uncomfortable similarities to the one taken by John Yoo when he served at the Justice Department and argued — in the wake of 9/11 — that the Constitution granted the president practically unquestioned executive power to wage war. Yet, even Bush sought congressional approval for military actions in Afghanistan and Iraq; Obama didn’t bother to do the same for Libya. In addition, Obama also overruled the opinion of his own Office of Legal Counsel (OLC) on the question of whether the president must abide by the War Powers Resolution in regard to the Libyan intervention. The OLC said he did; the White House assembled legal opinions that said he didn’t — and the latter view won out. As Bruce Ackerman, a law professor at Yale University, noted at the time, "Mr. Obama’s decision to disregard that office’s opinion [the OLC] and embrace the White House counsel’s view is undermining a key legal check on arbitrary presidential power."
So at a time when the door has been opened rather wide on unaccountable war-waging by the executive branch — with minimal legislative checks and balances — the Obama administration has opened it even further. What is perhaps most surprising is that it is being promulgated by a president who pledged as a candidate to put an end to such practices.
As Ackerman said to me, Obama came into office with a golden opportunity to reestablish some modicum of restraint over the actions of the executive branch in the pursuit of national security. Ironically, in a Boston Globe questionnaire in December 2007, Obama specifically rejected the argument that he used, in part, to justify going around Congress on Libya. "The President," wrote candidate Obama, "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 … History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch."
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.