Critics are starting to swarm around the Obama administration’s increasingly unintuitive claim – in the sixth day of what the New York Times now describes as “ferocious” air strikes on ground forces, tanks, and artillery – that the intervention in Libya is not “war.” No doubt political considerations inform this awkward rhetorical stance. But I think legal considerations do too. As I suggested a few days ago, it appears that the administration’s “not war” legal justification is grounded in two opinions by then-OLC head Walter Dellinger, one concerning the planned 1994 troop deployment in Haiti, and the other the 1995 troop deployment to help NATO ensure compliance with the Bosnia peace agreement. In those opinions Dellinger attempted to justify the relatively low-key interventions without embracing some of the broader theories of presidential war unilateralism going back to the Korean War. Dellinger essentially argued that because those interventions were consensual, limited in scope and duration, and not likely to lead to casualties, they did not amount to “War” within the meaning of the Declare War clause, and thus did not require congressional authorization.
I think the Obama administration embraced these arguments because, like the Clinton administration, it did not want to rely on broader theories of presidential power. Going this route also avoids having to embrace (or explain away) the awkward post-Dellinger, Clinton-era unilateral intervention in Kosovo, which involved eleven weeks of intense aerial bombardment. Nonetheless, using the Dellinger rationale in Libya is awkward for at least two reasons.
First, the Haiti and Bosnia interventions were different. Dellinger gave considerable weight to the fact that Haiti and Bosnia were consensual interventions. The Libya intervention is not. Dellinger suggested in the Haiti opinion that “the limited antecedent risk that United States forces would encounter significant armed resistance or suffer or inflict substantial casualties as a result of the deployment” (my emphasis) weighed against the intervention being a war that required congressional authorization. In Libya, both significant armed resistance and substantial casualties from a week of heavy bombing could have been anticipated. Dellinger also said in the Haiti opinion that “other aspects of the planned deployment, including the fact that it would not involve extreme use of force, as for example preparatory bombardment [my emphasis], were also relevant to the judgment that it was not a ‘war.’” Extreme use of force and preparatory bombardment are what Libya is about. Cutting in the other direction, both the Bosnia and Haiti deployments involved (or were anticipated to involve) a lot of U.S. troops on the ground – troops that are harder to disengage from fighting than mere aerial bombardments. Nonetheless, those troops were being sent there as part of consensual peacekeeping or stability missions, not as a coercive force. For these reasons, it seems to me that characterizing the Libya intervention as not “war” requires an expansion, possibly significant, of the Dellinger rationale for unilateral presidential power.
Second, the Dellinger rationale becomes less persuasive with each passing day as the duration of the conflict grows longer and the casualties and physical damage pile up. It also starts at some point to look like Kosovo, the precedent the administration apparently wants to avoid.
It is impossible for outsiders to know how much the “no war” rhetoric and the imperative for the United States to withdraw soon from active hostilities are being driven by domestic and international politics, and how much are being driven by the Justice Department’s (or the White House’s) skittishness about indulging a broader theory of presidential power. The more the administration keeps insisting that the Libya intervention is “not war” in the face of growing domestic skepticism about the claim, the more I think legal considerations are driving the rhetoric.