Congressional AbdicationMar-Apr 2013
The issue in play in Libya was not simply whether the president should ask Congress for a declaration of war. Nor was it wholly about whether Obama violated the edicts of the War Powers Act, which in this writer’s view he clearly did. The issue that remains to be resolved is whether a president can unilaterally begin, and continue, a military campaign for reasons that he alone defines as meeting the demanding standards of a vital national interest worthy of risking American lives and expending billions of dollars of taxpayer money.
And what was the standard in this case?
The initial justification was that a dictator might retaliate against people who rebelled against him. No thinking person would make light of the potential tragedy involved in such a possibility in Libya (or, at present, in Syria). But it should be pointed out that there are a lot of dictators in the world and very few democracies in that particular region. This gives the Obama standard a pretty broad base if he or any future president should decide to use it again. And then, predictably, once military operations began, the operative phrase became “human suffering” and the stated goal became regime change, with combat dragging on for months.
In a world filled with cruelty, the question is not only how but whether a president should be allowed to pick and choose when and where to use military force on the basis of such a vague standard. Given our system of government, the fundamental question is: Who should decide? And even if a president should decide unilaterally on the basis of an overwhelming, vital national interest that requires immediate action, how long should that decision be honored, and to what lengths should our military go, before the matter comes under the proper scrutiny—and boundaries—of Congress?
As a measure for evaluating future crises, it is useful to review the bidding that led to our actions in Libya. What did it look like when President Obama ordered our military into action in that country, and what has happened since?
Was our country under attack, or under the threat of imminent attack? No. Was a clearly vital national interest at stake? No. Were we invoking the inherent right of self-defense as outlined in the UN Charter? No. Were we called upon by treaty commitments to come to the aid of an ally? No. Were we responding in kind to an attack on our forces elsewhere, as we did in the 1986 raids in Libya after American soldiers had been killed in a Berlin disco? No. Were we rescuing Americans in distress, as we did in Grenada in 1983? No.
The president followed no clear historical standard when he unilaterally decided to use force in Libya. Once this action continued beyond his original definition of “days, not weeks,” into months and months, he did not seek the approval of Congress to continue military activities. And, while administration members may have discussed this matter with some members of Congress, the administration never formally conferred with the legislative branch as a coequal partner in our constitutional system.
Obviously, these points are not raised out of any lasting love for the late Libyan leader Muammar el-Qaddafi. But this is not about Qaddafi; it is about the manner in which our nation decides to use lethal military force abroad. This is a region rife with tribalism, fierce loyalties and brutal retaliation. Libya represented the extreme (at least so far) of executive action in the absence of the approval of Congress. We took military action against a regime that we continued to recognize diplomatically, on behalf of disparate groups of opposing forces whose only real point of agreement was that they wished to rid Libya of Qaddafi. This was not even a civil war. As then secretary of defense Robert Gates put it to this writer during a Senate Armed Services Committee hearing, it is not a civil war when there is no cohesive opposition facing a regime. The too frequently ignored end result of this process was not only the rampant lawlessness that possibly contributed to the assassination of our ambassador and three other U.S. officials, but also the region-wide dispersion of thousands of weapons from Qaddafi’s armories.
The inaction (some of it deliberate) of key congressional leaders during this period has ensured that the president’s actions now constitute a troubling precedent. Under the objectively undefinable rubric of “humanitarian intervention,” President Obama has arguably established the authority of the president to intervene militarily virtually anywhere without the consent or the approval of Congress, at his own discretion and for as long as he wishes. It is not hyperbole to say that the president himself can now bomb a country with which we maintain diplomatic relations, in support of loosely aligned opposition groups that do not represent any coalition that we actually recognize as an alternative. We know he can do it because he already has done it.
Few leaders in the legislative branch even asked for a formal debate over this exercise of unilateral presidential power, and in the Senate any legislation pertaining to the issue was prevented from reaching the floor. One can only wonder at what point these leaders or their successors might believe it is their constitutional duty to counter unchecked executive power exercised on behalf of overseas military action.