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Jack L.B. Gohn: Finessing legality in Libya

What, legally speaking, did the Obama administration do when it committed U.S. forces to the military effort to rein in Colonel Gadhafi? If you had to scratch your head over that one, you’re not alone. The administration has chosen not to provide a legal analysis.

On one, very superficial level, we know. That is, the U.S. lent itself to the enforcement of U.N. Security Council Resolutions 1970 and 1973, which together authorized the creation and enforcement of a no-fly zone, and also authorized member states to “take all necessary measures … to protect civilians and civilian populated areas under threat of attack.” These enactments and their implementation were accompanied, both at the U.N. and the White House, by assertions that these steps do not and will not involve ground forces (and hence have gone forward to date without U.S. “boots on the ground”). After the president’s March 28 address, it seems we have a “no-boots” pledge.

As of this writing (March 28), it seems reasonably possible that “boots” may not be required even to achieve the only resolution that has a chance of protecting civilians long-term, i.e., one that removes Gadhafi. But that resolution language about “all necessary measures” is an open door, and one that it seems possible someone may have to walk through. The “nightmare scenario” leading to that necessity is easy to imagine: Gadhafi is not dethroned, and continues, despite the no-fly zone, to attack citizenry, and enjoys some degree of success. It then becomes necessary, if other powers wish “to protect civilians … [from] attack,” to finish the job of dethroning Gadhafi; these may prove to be the only viable alternatives.

The confusion Speaker of the House John Boehner expressed in his March 23 letter to Obama is a direct and legitimate consequence. He phrased it this way: “You have stated that Libyan leader Muammar Qadhafi must go, consistent with U.S. policy goals. But the U.N. resolution the U.S. helped develop and signed onto makes clear that regime change is not part of this mission.” I would rephrase it: “You commit to a mission that may require regime change, but foreswear pursuing it. How do you reconcile these positions?”

History may save Obama from having to answer the question. He is not eager to answer: instead, his stance as of last week was that we have only been involved in a limited operation, and that our major commitment to it is just about over. If something bigger is required for Gadhafi to fall, perhaps it will be up to others to provide it.

From the standpoint of the laws, then, his implicit argument is that he wasn’t involved in a war, or just a teeny little one. That will not wash, though, when laid next to the laws on the books.

Two documents theoretically constrain a president’s freedom to do what Obama has done. One is the Constitution, which allows only Congress, not the president, to initiate wars, and then only by declaration. The other is the War Powers Resolution. That law requires quick “consultation” with Congress, and requires the president to withdraw deployed forces within 60 days unless Congress approves their continued deployment.

If sending warplanes and Tomahawk missiles to blast Libyan tanks, anti-aircraft batteries, runways and aircraft to smithereens is not an act of war, then Obama did not constitutionally need a declaration. But acts of that nature are warfare. Obama has yet to exceed his 60 days under the WPR, and he claimed on March 28 to have acted after “consulting the bipartisan leadership of Congress.” If the second half of this were true, Obama would be compliant with the WPR for the moment. It appears that by this phrase Obama means a March 18 briefing of certain members of Congress. But, as was pointed out immediately, this was a briefing at which congressional input was not sought. That is not what is ordinarily meant by consultation.

So basically Obama is out of compliance. He has made a calculation to ignore what the written rules say, because history is on his side. Unfortunately, as far as the law goes, that bet is almost certainly right.

As I explained in a series of articles in these pages between 2005 and 2007, the congressional monopoly on committing U.S. forces to combat was quickly breached by Supreme Court rulings that countenanced something called “imperfect war,” meaning, essentially, commitment of U.S. armed forces unpreceded by a congressional war declaration. This approach greatly appealed to the Executive Branch, because it allowed the president to claim the deference due his war powers while freeing him from his dependency upon Congress to authorize their exercise. Thereafter, declared wars — and congressional say in the matter — almost vanished from the scene, but we have been “at war” from the standpoint of the presidential prerogative dozens of times.

After Vietnam, Congress tried to recapture some of its authority with the War Powers Resolution. While running for office, Obama had claimed to endorse the view that “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.” I warned in this space that I did not see clear signs he was really committed to that view. I said just before the last election: “We do not yet have a clear picture of what would happen next if a President Obama were to tell congressional leaders he planned to … invade some country … and they were to express opposition.” Libya seems to bear out those misgivings.

Not that I wish to minimize the short-term considerations that guided Obama’s course. In the rapidly emerging bloodbath that Gadhafi had explicitly promised, Obama seemed to face a much more genuine crisis than the threat of phony weapons of mass destruction Bush used to justify Iraq. True consultation might have delayed the intervention too long.

And now, says Obama, it’s already nearly over. That may save Obama from ever having to articulate the legal justification for what he did. We never saw any Office of Legal Counsel memos. But I’d be willing to bet that somewhere in some Department of Justice office, lawyers has put together an opinion that runs something like this: a) Treaties can lawfully delegate certain otherwise congressional powers to international entities; b) We have by treaty delegated to the Security Council and organizations like NATO power to authorize member states to use force; c) We are a member state; d) Ergo we have delegated to the Security Council or NATO part of congressional powers of approval for us to enter “imperfect” wars, and e) The president can lawfully treat a Security Council or NATO resolution as sufficient authorization for him to employ military force without further congressional approval.

If that is the way things are tending — candidly, we could do worse. The community of nations might function as a bit more of a check and balance on Executive Branch military adventurism than Congress. Still, we saw George W. Bush game the international system in Iraq. And like most Americans, I’m sure, I’d rather keep the checks and balances stateside.

Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP and a former member of The Daily Record’s Editorial Advisory Board. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.