The Office of Legal Counsel (OLC) recently issued an opinion on the President’s decision to direct the use of force in Libya in support of United Nation Security Council (UNSC) Resolution 1973. The OLC concluded, unsurprisingly, that the President had the constitutional authority to direct the use of force without prior congressional approval. The OLC opinion is the latest in a series of opinions which reached the same conclusions in a long and growing list of Presidential authorizations for the use force in Panama, Somalia, Haiti (twice), Bosnia, and Yugoslavia. According to the OLC opinion, in contrast to the long history of the President’s unilateral authorization to use force, Congress’s power to declare war is not well defined, even though it is expressly provided for in Article I of the Constitution.
The OLC’s opinion reasons that both the Constitution and past history show that not every use of force must have congressional authorization. According to the OLC opinion, the President can unilaterally authorize the use of force when important national interests are at stake and the use of force does not rise to the level of a “war” in the constitutional sense. In the case of Libya, according to the memo, the President articulated two national security interests. First, the United States has a longstanding national security and foreign policy interest in the stability of the Middle East, a stability threatened by Qadhafi’s actions. Second, the United States has longstanding commitments to maintaining the credibility of the United Nations Security Council. If the United States were unwilling to support UNSC 1973, the authority and credibility of the Council would be undermined.
Finally, the opinion concluded that the force the President authorized was limited and did not rise to the level of a “war” in the constitutional sense, and therefore there was no need for congressional authorization. The OLC reached this conclusion for three reasons. First, the President did not authorize the use of ground forces. Second, the operations were limited to a “well-defined mission” to protect civilians and prevent a humanitarian disaster. Finally, the bombing missions were not preparatory to a ground invasion.
Now that we are a month into this limited “well –defined mission,” it is useful to see just how closely the OLC’s opinion squares with the facts on the ground. It is interesting to note that Secretary of Defense Robert Gates may not have been fully on board with the OLC’s rationale when he testified before Congress, in advance of Security Counsel Resolution 1973, that establishing a no-fly zone over Libya was tantamount to an act of war. From the very first days of the military mission, there has also been a great deal of confusion as to exactly what the supposed “well-defined mission” is. Is it to remove Qadhafi from power? Is it to prevent a humanitarian disaster? Is it to support the loosely aligned band of rebels in their efforts to gain territory and eventually move into Tripoli? Is it to maintain the status quo? If the recent squabbling among the NATO allies over the mission is any indication, no one really seems to know the answer to these most basic questions.In spite of this confusion over what the mission really is, we should not be surprised by OLC’s conclusions. It would really have been news if the OLC concluded that the President needed congressional authorization to use force. Nonetheless, in spite of the long history of Presidents claiming that they have the constitutional authority to authorize the use of force without any input from Congress, Congress can do more than sit passively on the sidelines watching as events unfold. It is noteworthy for example, that Speaker Boehner recently sent a letter to the President asking him to clarify specifically what the mission in Libya is and how long the military action is likely to last. A letter may be nothing more than a political gesture, but it may also provide the spark for Congress to engage in more focused and robust involvement. If Congress really hopes to be an equal partner in such important national security decisions like committing our forces to military action, it cannot simply take the legal opinions from the OLC as the final word on this issue. Time will tell if Congress is up to the task.