OLC Issues Libya War Powers Opinion

by Peter Spiro

The Office of Legal Counsel has released an opinion asserting the constitutionality of President’s Obama’s use of force against Libya.  Here’s how it frames the question:

[T]he President’s legal authority to direct military force in Libya turns on two questions: first, whether United States operations in Libya would serve sufficiently important national interests to permit the President’s action as Commander in Chief and Chief Executive and pursuant to his authority to conduct U.S. foreign relations; and second, whether the military operations that the President anticipated ordering would be sufficiently extensive in “nature, scope, and duration” to constitute a “war” requiring prior specific congressional approval under the Declaration of War Clause.

I think this is exactly right.  It’s notable in conceding that some uses of force do require advance congressional approval (thus chucking Korea as a dubious precedent for large-scale commitment on the basis of UNSC action alone).  It also broadly frames “important national interests” to get us beyond the (former) need to assert the protection of US citizens and property as a basis for the action.

The opinion is also notably insofar as it makes almost no use of Bush-era precedents or reasoning.  The only Bush OLC memo that gets cited relates to the 2004 Haiti operation (when Jack Goldsmith was at the helm).  I don’t think this is a coincidence.  Future administrations will shy away from Yoo/Bybee work product like the Supreme Court shies away from Korematsu; they may remain good law in some formal sense, but they’re hardly standing up in the court of history.


8 Responses

  1. To be honest, it is very interesting but a bit weird. I know that it follows US practice but….it seems to go so much against the language and the intent of the US constitution! It would seem that the drafters of the Constitution wanted Congress to vote and allow the use of armed force – unless the US was attacked and there was a need for imminent response, probably. Had they envisaged an attack of thousands of targets in a far-away continent against a state that does not pose a serious threat to US territorial integrity or population, they would have clearly called it war, to be declared by Congress. How can there be bipartisan acceptance of such liberal interpretation of the Constitution? It is a bit strange from a legal standpoint, that’s all.

  2. It seems to me a full legal analysis should also have considered the question of whether, notwithstanding the findings of the OLC on these first two questions, the President is required to seek an explicit, after-the-fact approval by the Congress.

  3. Thanks for posting the link to the opinion. I’ll reserve fuller comment until having read it, but I find it a little strange that it would focus on the concept of “war” as the trigger for requiring Congressional approval. While the Constitution obviously speaks of a “declaration of war”, together with other mechanisms signalling the initiation of war, international law has moved away from employing “war” as the primary legal concept. The jus ad bellum prohibition is on the use of force, and the jus in bello regime rests on armed conflict. There is an increasing body of jurisprudence that helps clarify the scope of both the use of force, and international armed conflict, while the legal definition of “war” remains ambiguous and increasingly irrelevant in international law.

    A purposive reading of the Constitution would suggest that the drafters intended that there be Congressional approval of government actions that would lead to armed conflict with other nations, which at the time was captured by the declaration of war, and issuances of letters of marque and reprisal. In the post-WWII world, the operative concepts are uses of force and international armed conflict, and the actions in Libya involve both. It is interesting to note that the War Powers Act does not focus on war either, but requires reporting when:

    In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
    (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; ….

  4. Craig Martin:
    It is interesting to note that the War Powers Act does not focus on war either, but requires reporting when:

    “In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

    (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; …”

    In addition to your other valuable points, note that the War Powers Act does not merely require “reporting” in the case of actual or imminent hostilities unauthorized by Congress (that is, according to the War Powers Act’s terms, when the President is acting on an emergency basis to repel an attack on the nation).
    The section you cite there is the trigger (with or without the required “reporting”) for an automatic 60-day limit on (end to) unilateral, defensive presidential war-making, unless and until that limit is lifted by Congressional action.  That is, without action by Congress, the War Powers Act, in the case of actual hostilities, requires an end to those hostilities within 60 days (with an extension of 30 days more available in certain circumstances).
    President Obama, however, clearly has no plans to comply with that provision of the law, unless somehow forced to do so (beyond long-term monetary restrictions, which won’t kick in for at least another $3 Billion or so of expenditures that the DOD deems met by available ‘excess’ funding in the Pentagon’s current budget).
    What the nation confronts on this profound question – in large part because the Judicial Branch has effectively abdicated its irreplaceable role in this inter-branch dispute – is essentially a repeated, implicit presidential taunt of “You and Whose Army?,” in response to the limits on presidential war-making in the Constitution and in the War Powers Act enacted by a supermajority of Congress.

  5. Response… The first prong of the test is [insert troubling adjective] broad and the second is [same] narrow.

    Congress, as Craig suggests, is given various powers that involve military force other than merely “war” related ones. It, for instance, has power over “reprisal” or defining the law of nations.

    To supply the executive some roving power to use force just because “war” is not involved, particularly given how much things changed since 1789, underlines how far executive power has expanded.

  6. Isn’t the fact that the US is a party to the UN Charter sufficient? The Security Council provides the authority for the intervention and the Charter calls on member states to support their mission (Articles 2(5) and 25).  Given that the Constitution tells us to consider treaties as part of the law of the land, and given that standard US foreign relations law has such international agreements on the same level as Congressional statutes (which would be the other route to declaring war), I see no reason why we could question Obama’s authority to support the UN mission here.

  7. “Isn’t the fact that the US is a party to the UN Charter sufficient?” – Anon the 2nd

    Absolutely not.

    Aside from what should be the obvious fact that the U.S. House of Representatives does not, and cannot, waive (or be relieved of, without a say in the matter) its share of the Constitutional power to declare war because the Senate ratifies a treaty, this very question was central to the debates about our participation in both the League of Nations and the United Nations (through ratification and through the United Nations Participation Act). 

    The risk that the Congress would be said to have ceded its plenary war powers to an international body led directly to the Senate’s rejection of the resolution of ratification for the League of Nations treaty.  That lesson was learned when the U.N. Charter and UNPA were later written, as clearly spelled out in this 1991 AJIL article by Michael Glennon, which Kenneth Anderson recently highlighted and linked here.

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