War Powers

Libya, Domestic Authority, and the Proper Analogy

By Jack Goldsmith
Thursday, March 10, 2011, 1:33 PM

Bruce Ackerman and Oona Hathaway argue at the Huffington Post that President Obama lacks the constitutional authority to impose a no-fly zone in Libya in the absence of congressional authorization.  Their main argument is that “[i]f Obama goes it alone, he must return to Bush-era assertions that the president, as commander-in-chief, can unilaterally launch the nation into war.”  This is wrong, for several reasons.  George W. Bush sought and received congressional approval for both of his wars – against those responsible for 9/11, and in Iraq.  Bush did proclaim unilateral presidential power to engage in preemptive self-defense, broadly conceived.  But that rationale is not in play here, for as Ackerman and Hathaway note, “nobody suggests that Gaddafi’s assault on his domestic enemies is a threat to the United States.”  Ackerman and Hathaway further claim that “President Obama immediately withdrew opinions written by John Yoo and others making . . . extreme claims” about the president’s power unilaterally to launch the nation into war.  But this did not happen.  Obama officials withdrew many Bush-era OLC opinions.  But they did not withdraw the two very broad opinions in support of the president’s unilateral war powers related to terrorism and Iraq (and indeed probably never had an opportunity to consider them before now).

In their rush to paint intervention in Libya as a return to Bush-era assertions of presidential power, Ackerman and Hathaway miss the closest analogies.  Perhaps the closest is President Clinton’s 1999 air campaign in Kosovo, without congressional authorization, which was justified legally on the basis of the President’s “constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”  Letter to Congressional Leaders Reporting on Airstrikes against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 1 Pub. Papers of William J. Clinton 459, 460 (1999).  The Kosovo intervention was not premised on self-defense, or on protecting American citizens or property, but rather on some combination of humanitarian protection and preserving peace and stability in the region.  These are very similar to the rationales that appear to be on the table for a possible intervention in Libya.  If the U.N. Security Council supports a no-fly zone, other precedents will come into play, most notably the Korean War and the 1992 intervention in Somalia.  There are many other precedents that must be considered to assess the legality of an intervention in Libya.  None of them comes from the George W. Bush administration.