Libyan “Hostilities” Revisited June 20, 2011

It’s already time for me to revisit the debate over Libyan “hostilities.” I’m not happy with my post last week, and a lot has happened since then. The House of Representatives is likely to consider two measures this week (probably on Thursday) relating to the US Libyan operation: an amendment to the FY2012 DOD appropriations bill offered by Rep. Kucinich to defund the entire operation, and some sort of Republican alternative, the exact language of which is still being worked out by GOP leadership. There are really three questions at stake here, which I feel like my last post did not delineate clearly:

1: Are American military operations in Libya justified?

2: Is the President legally bound to receive authorization from Congress in order to conduct these operations?

3: Regardless of the answer to question 2, should the President seek authorization from Congress?

In my last post, I only really answered question 1, and I did so indirectly. I fully support US military operations in Libyan and believe they are justified. The United States and its allies prevented a massacre, upholding the R2P norm, at little cost. While the US took the lead at first, we did so in conjunction with a broad coalition that included Arab and African countries. Qaddafi’s regime was causing insecurity in North Africa and the world, and there was a serious threat to the stability of Arab Spring hopefuls Tunisia and Egypt, which Libya borders. The alternative, withdrawing our support for the NATO mission, would undermine whatever levels of trust we have with our allies. While the mission of the NATO military operation is not regime change, that is the stated political goal. Establishing a new regime in Libya (one of the most tribal countries in Africa) will certainly be messy, but I agree with the administration’s decision to make regime change the explicit political goal. This is a very low-cost way for the US to achieve a desired long-term goal.

Regarding question 2, there is really no clear answer. The controversy over this particular question intensified over the weekend when it was reported that President Obama overruled the legal advice of his Attorney General and the Office of Legal Counsel at the Justice Department. These two offices are charged with providing the Oval Office legal counsel, and to overrule them both is a major statement. Admittedly, the President knows a thing or two about the constitution, and he does have the final say. The statute in question, the War Powers Act, is extremely ambiguous, and the judicial branch has not, and seemingly will not, issue a formal ruling. Thus, Congress could clarify the law, or it could use its tools to make Obama suffer for this politically. It will definitely do the latter, and it may attempt to do the former. While Obama may suffer political consequences, he will not suffer legal ones.

Ideally the answer to question 3 is yes. The more debate and oversight that takes place in Congress, the more democratic America becomes. However, things are not that simple when politics are involved. My former professor, and respected Arab world commenter, Marc Lynch posits that the administration did not seek Congressional authorization early on in its Libyan operation because it correctly believed there would be significant, unwanted riders attached to the legislation like repealing health care reform, reinstating “Don’t Ask, Don’t Tell”, or more budget cuts. I think he is right. The truth is, nobody knows what would have happened had the administration tried to receive authorization from Congress last week before the 90 day threshold expired. The administration judged the wiser choice was to claim it does not need Congressional authorization because the War Powers Act does not apply to its current Libyan operations.

Marc Lynch also wishes that the administration would seek Congressional authorization and make a “full-throated case for the Libya intervention– why it was launched, what it accomplished, where it fits into the broader unfolding Arab transformation, and how its success will advance American interests.” Now that is has made it official policy that the administration does not need Congress’ approval, this will not happen. I am satisfied that the 30 page memo to Congress fulfills this explanation on the part of the administration. While it may not be the unabashed defense of the Libyan “hostilities” that Lynch desires, it persuasively answers the questions of “why it was launched, what it accomplished, where it fits into the broader unfolding Arab transformation, and how its success will advance American interests.”