Obama Administration Claims that the Libya Intervention is Constitutional Because it is Not a “War”

Charlie Savage of the New York Times reports that the Obama Administration is arguing that the Constitution does not require congressional authorization for the Libya intervention because it is not a “war,” but merely some smaller scale of military action:

“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,” Mr. Obama told The Boston Globe in December 2007.

The administration’s legal team appears to be distinguishing between a full war and a more limited military operation, on the theory that the Libyan intervention falls short of what would prompt any Congressional authority to control decisions about whether to initiate hostilities.Asked about Mr. Obama’s 2007 statement, Tom Donilon, Mr. Obama’s national security adviser, said Monday that the administration “welcomes the support of Congress in whatever form that they want to express that support.” But, Mr. Donilon added, Mr. Obama could authorize the operation on his own.

“This is a limited — in terms of scope, duration and task — operation, which does fall in the president’s authorities,” he said.

As I have pointed out here and here, this may be a reasonable argument if the Libya operation remains short and very limited in scale. But if it drags on or the fighting escalates, the administration’s legal position will become increasingly tenuous. Moreover, as Jack Goldsmith points out, the administration may be relying on Clinton-era arguments justifying the 1994 Haiti and 1995 Bosnia interventions. But those arguments relied heavily on the notion that the interventions in question were “consensual” (US forces had been invited by the governments of those countries). By contrast, the Libyan government certainly hasn’t invited us to bomb its forces, and the administration has not recognized the rebels as as the “true” government in Gaddafi’s place.

Some might say that none of this really matters. After all, no court is likely to enjoin military operations against Libya, even if a lawsuit were filed. But the president and Congress have an independent duty to uphold the Constitution even if courts cannot or will not force them to do so. We should strive to establish a political culture where all three branches of government take their constitutional obligations seriously. I am not naive enough to believe that politicians will ever do so fully. But we can certainly do better than the present situation where most of our elected leaders give the Constitution no more than lip service unless forced to do by defeat in Court.

Constitutional considerations also matter in so far as they might sway public opinion. While people who strongly support or strongly oppose the Libya intervention are unlikely to change their minds on the basis of constitutional concerns alone, many observers are on the fence. I am one such fence-sitter myself, since I see some strong arguments on both sides of the policy issue. The Libya action has split both the right and the left in interesting ways. In such a fluid situation, constitutional arguments might have a greater impact than in a case where partisan divisions are tightly drawn and most people have strong commitments to one side or the other.