Charlie Savage reports that the Obama administration’s “legal team appears to be distinguishing between a full war and a more limited military operation, on the theory that the Libyan intervention falls short of what would prompt any Congressional authority to control decisions about whether to initiate hostilities.” This rationale is consistent with the President’s letter to Congress, which emphasized that the United States “has not deployed ground forces into Libya,” is “conducting a limited . . . mission,” and plans to transition operations quickly “to coalition, regional, or international organizations.” The rationale would likely rely primarily on the analysis in two Walter Dellinger OLC opinions, 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 these opinions Dellinger concluded that the interventions in question – mainly (but not exclusively) because they were consensual, limited in scope and duration, and not likely to lead to casualties – were not “wars” that might require congressional approval. There is much to say about these interesting opinions – about why they were written the way they were, about whether the Korean War was lawful under their implicit rationale, about whether the Kosovo intervention a few years later (for which there is no OLC opinion) was lawful under their implicit rationale, and about how their application to the Libya situation requires an expansion of their rationale. Unfortunately I haven’t time to do so now, but the opinions are linked above for interested readers to peruse.
Update: The Washington Post editorial board supports the constitutionality of the President’s actions, based on the “non-war” rationale.