OLC Issues Libya War Powers Opinion
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.