More to Read About Libya

Was the decision to intervene in Libya justified by the threat of imminent massacres, and possibly even a genocide?  And did President Obama have the authority to intervene? 

If you’re still wondering about either of those questions, I have two suggestions for further reading.  The first is an op-ed by Alan Kuperman, which casts further doubt on the likelihood that Qadhafi’s forces were about to engage in the indiscriminate slaughter of thousands of innocent bystanders in Benghazi.  Kuperman points out that Qadhafi loyalists did not conduct massacres in any of the cities that they have recaptured, and that the Libyan tyrant’s threats to show "no mercy" applied only to rebels.  He also notes that the reported casualties are overwhelmingly male, which suggests that it is primarily combatants (i.e., rebels) who are being killed.

Note that Kuperman is no apologist for Qadhafi.  He does not deny that Qadhafi is a thuggish ruler, that his loyalists were killing civilians, or that some of their actions constitute war crimes.  The question, however, is whether there was an imminent risk of a bloodbath that "would stain the conscience of the world," as Obama put it. 

Notice also that although Obama did not use the word genocide himself, both current and previous members of his administration did raise the spectre of a genocide in order to make the case for U.S. action.   Anne-Marie Slaughter, the former head of Policy Planning in the State Department, tweeted ""The international community cannot stand by and watch the massacre of Libyan protesters. In Rwanda we watched. In Kosovo we acted."   Similarly, Secretary of State Hillary Clinton said ""We learned a lot in the 1990s.  We saw what happened in Rwanda."  The clear implication was that failure to act in Libya would produce hundreds of thousands of deliberate murders (which is what occurred in Rwanda in 1994).

Given that Qadhafi is a heinous ruler of dubious legitimacy, why does this matter?  It matters because the case for intervention depends heavily on the magnitude of the humanitarian calamity that we sought to forestall.  If the danger really was that grave, then the case for intervention goes up.  But if the likely consequences of a Qadhafi victory were regrettable but not that large, then the case for intervention diminishes.  And the case for action is even weaker if there is a genuine risk that intervention might prolong the fighting, produce a stalemate or a failed state, or provoke the government into acts of brutality that it might not have conducted otherwise.  

Second: did Obama exceed his powers when he ordered the use of force?   The Justice Department’s Office of Legal Counsel has issued an opinion on this issue (perhaps coincidentally, on April 1^st), and–surprise, surprise–they’ve concluded that it was perfectly ok.  The OLC makes three arguments: 1) it’s not really a war, and the President has broad powers short of war; 2) we’re enforcing a Security Council resolution, which gives the President even more authority, in part because he has to uphold the credibility of the Security Council; and 3) the War Powers Resolution permits the President to use force for sixty days without advance approval. 

Michael Glennon of the Fletcher School examines the OLC’s arguments in the Harvard National Security Journal and finds them wanting on legal and constitutional grounds.  More tellingly, he also shows that these justifications are at odds with Obama’s own statements before he became President.   In 2007, for example, Obama told the Boston Globe that "the president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involves stopping an actual or imminent threat to the nation."  (Obama used to teach constitutional law, so he’s not exactly a tyro on these issues).  And back when she was a mere Senator, Secretary of State Hillary Clinton said that "I do not believe that the President can take military action–including any kind of strategic bombing–against Iran without congressional authorization."  More strikingly still, State Department Legal Advisor Harold Koh has repeatedly argued–as a scholar–against precisely this sort of expansive interpretation of presidential power.  But not this time.

At this point in the history of the republic, it should come as no surprise that people working in the Executive Branch tend to think the President has the power to use military force just about any time the he and his advisors deem it necessary or advisable.  It is equally unsurprising that politicians and pundits tend to be hypocritical about this issuet: they think the President ought to have broad powers when they agree with the particular use to which it is being put, and they think those powers ought to be limited when they think the President is doing something foolish or unnecessary.  

Reasonable people can disagree about just how much authority the Executive Branch ought to have, just as they can also disagree about the course of action the United States and others should have followed with regard to the situation in Libya.  But let’s be clear about the long-term effects of the de facto authority we are granting every President.  It’s a messy world out there, and there will always be some trouble somewhere that people will want Uncle Sam to fix.  If you give a single individual the authority to decide when to order the world’s mightiest military into battle, without having to consult anyone except his own appointed advisors, then you shouldn’t be surprised when that mighty military gets used over and over and over.