Tag: war powers

More on Libya and Constitutional War Powers

So it turns out that, per CBO’s numbers, the “epic” budget showdown didn’t even produce enough cuts to pay for a week of bombing Libya.

On that subject, as I noted last week, the Obama administration’s Office of Legal Counsel recently released its memo arguing that our Libyan adventure is constitutional. And that memo is one sorry piece of work.

Over at the Washington Examiner’s “Beltway Confidential” blog, I’ve been commenting on various aspects of the OLC memo, and I thought I’d link to some of that discussion here.

Recently, I addressed two of the OLC’s arguments: (1) that what we’re doing in Libya isn’t “war”; and (2) that the 1973 War Powers Resolution gives the president a 60-to-90-day “free pass” to wage war without congressional authorization. Neither argument comes close to showing that the president’s actions in Libya are legal.

Make no mistake, what we’re doing in Libya amounts to war. Defense Secretary Gates admitted as much recently, albeit reluctantly:

It’s fairly common to hear supporters of unrestrained presidential war power argue that whatever “war” is, it’s far too ambiguous a concept for us to insist that the president be restrained by constitutional niceties like prior congressional approval.

But this is a silly argument.

Yes, there are line-drawing problems with the “Declare War” Clause, as there are with every other clause in the Constitution. That doesn’t mean there are no lines — the color gray isn’t a refutation of the categories “black” and “white.”

And the Libyan intervention is pretty black and white. This is a nondefensive, unprovoked use of force, ordered by our president to, as he put it, prevent a massacre that would have “stained the conscience of the world.” (By the way, there’s good reason to doubt that was the case, Professor Alan Kuperman argues.)

The OLC’s argument that the War Powers Resolution empowers the president to launch “limited” wars fares no better. Put briefly, (1) the WPR makes clear that the president’s constitutional powers are limited to defensive uses of force; (2) the text underscores that the WPR doesn’t purport to add anything to the constitutional powers of the president; and (3) it couldn’t in any event: the Constitution trumps a statute, and, like it or not, the Constitution doesn’t allow the president to start wars.

Even so, the WPR — passed over Richard Nixon’s veto in 1973 to restore congressional control over the decision to go to war — hasn’t much inconvenienced any president since. Perversely, they actually use it as an argument for presidential war-making, which is why it may have done more harm than good, overall [.pdf].

As Charlie Savage pointed out recently in the New York Times, the 60-day clock runs out in mid-May. We’re still bombing Libya now, and President Obama recently approved the use of armed Predator drones there. If this keeps up for another month, then Obama will become the second Democratic president in a row to wage war beyond the WPR’s 60-day limit.

Missing in Action: The Antiwar Movement

At the Britannica Blog today, I ask, What ever happened to the antiwar movement?

Maybe antiwar organizers assumed that they had elected the man who would stop the war. After all, Barack Obama rose to power on the basis of his early opposition to the Iraq war and his promise to end it. But after two years in the White House he has made both of George Bush’s wars his wars….

And now Libya. In various recent polls more than two-thirds of Americans have opposed military intervention in Libya. No doubt many of them voted for President Obama….

It’s hard to escape the conclusion that antiwar activity in the United States and around the world was driven as much by antipathy to George W. Bush as by actual opposition to war and intervention. Indeed, a University of Michigan study of antiwar protesters found that Democrats tended to withdraw from antiwar activity as Obama found increasing political success and then took office. Independents and members of third parties came to make up a larger share of a smaller movement. Reason.tv looked at the dwindling antiwar movement two months ago.

Like Gene Healy, I also reflect on these words from Senator Barack Obama in his campaign for president:

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.

Lugar on Libya

Daniel Larison points to this statement by Sen. Richard Lugar which is really a breath of fresh air:

Sen. Richard Lugar

…Given the costs of a no-fly zone, the risks that our involvement would escalate, the uncertain reception in the Arab street of any American intervention in an Arab country, the potential for civilian deaths, the unpredictability of the endgame, the strains on our military, and other factors, it is doubtful that U.S. interests would be served by imposing a no-fly zone over Libya.   If the Obama Administration is contemplating this step, however, it should begin by seeking a declaration of war against Libya that would allow for a full Congressional debate on the issue. In addition, it should ask Arab League governments and other governments advocating for a no-fly zone to pledge resources necessary to pay for such an operation.


Finally, given continuing upheaval in the Middle East, we should understand that the situation in Libya may not be the last to generate calls for American military operations.   We need a broader public discussion about the goals and limits of the U.S. role in the Middle East, especially as it pertains to potential military intervention.

Emphasis mine. To hear a member of Congress reassert its Constitutional prerogative over the war power is really refreshing. The late Robert C. Byrd would be pleased.

No to No-Fly Zones

My Washington Examiner column this week is on the growing drumbeat for military action in Libya.  That allegedly serious people are proposing, as Defense Secretary Gates puts it, “the use of the US military in another country in the Middle East,” ought to be appalling.  If the last ten years haven’t convinced you that a little prudence and caution might serve us well in foreign policy, what would?

Recently Senators John McCain (R-AZ) and Joe Lieberman (I-CT), the Bobbsey Twins of knee-jerk interventionism, chastised Obama for dragging his feet on the path toward war.  They called for arming the rebels and implementing a no-fly zone, for starters.

“I love the military,” Sen. McCain complained “but they always seem to find reasons why you can’t do something rather than why you can.”  Alas, “can’t is the cancer of happen,” as Charlie Sheen reminded us recently.

Even so, I argue in the column, there are good reasons to resist the call for this supposedly “limited” measure.


But let’s stipulate that NATO warplanes (mainly U.S. fighters, of course) could deny pro-Gadhafi forces the ability to deploy air power. That would not impede their ability to murder on the ground. What then?

NATO flew more than 100,000 sorties in Operation Deny Flight, the no-fly zone imposed over Bosnia from 1993 to 1995, yet that wasn’t enough to prevent ethnic cleansing or the killing of thousands of Bosnians in the 1995 Srebrenica massacre.

It did, however, help pave the way for a wider war and a 12-year nation-building mission. In for a penny, in for a pound – intervention tends to have a logic of its own.

This is a good occasion, then, to reflect on a fundamental question: What is the U.S. military for? Humanitarian interventionists on the Left and the Right seem to view it as an all-purpose tool for spreading good throughout the world – something like the “Super Friends” who, in the Saturday morning cartoons of my youth, scanned the monitors at the Hall of Justice for “Trouble Alerts,” swooping off regularly to do battle with evil.

Our Constitution takes a narrower view. It empowers Congress to set up a military establishment for “the common defence … of the United States,” the better to achieve the Preamble’s goal of “secur[ing] the Blessings of Liberty to ourselves and our Posterity.” Armed liberation of oppressed peoples the world over wasn’t part of the original mission.

Funny enough, when he first got to Washington, John McCain occasionally appreciated the virtues of foreign policy restraint.  As Matt Welch recounts in his book McCain: The Myth of a Maverick: “In September 1983, as a freshman congressman and loyal foot soldier of the Reagan revolution, John McCain voted against a successful measure to extend the deployment of US Marines in war-torn Lebanon.”  In a speech on the House floor, McCain argued that “The fundamental question is, what is the United States’ interest in Lebanon?…. The longer we stay in Lebanon, the harder it will be for us to leave.”

Later, Welch writes that, in 1987, when President Reagan reflagged Kuwaiti oil tankers in the Persian Gulf, offering them “US Navy protection against a threatening Iran, McCain was livid.”  He took to the pages of the Arizona Republic to complain that the move was “a dangerous overreaction in perhaps the most violent and unpredictable region in the world…. American citizens are again be asked to place themselves between warring Middle East factions, with…. no real plan on how to respond if the situation escalates.”

It’s been a long time since Senator McCain made such good sense on foreign policy.