Most of the legal discussion about Libya intervention has focused in recent weeks on the War Powers Resolution. But the constitutional issue of the President’s power to order the intervention without congressional authorization in the first place is also still in play. The reason it is still in play is that the OLC opinion supporting the intervention was expressly premised on a set of assumptions about what type of military intervention was “anticipated.” President Obama pledged in his March 21, 2011 letter to Congress that the Libya strikes “will be limited in their nature, duration, and scope.” This pledge, in turn, was central to the Office of Legal Counsel’s conclusion that “the limited military operations the President anticipated directing were not a ‘war’ for constitutional purposes” (my emphasis). Here is OLC’s summary of reasons why the anticipated military operations were not a constitutional war:
As in the case of the no-fly zone patrols and periodic airstrikes in Bosnia before the deployment of ground troops in 1995 and the NATO bombing campaign in connection with the Kosovo conflict in 1999—two military campaigns initiated without a prior declaration of war or other specific congressional authorization—President Obama determined that the use of force in Libya by the United States would be limited to airstrikes and associated support missions; the President made clear that “[t]he United States is not going to deploy ground troops in Libya.” The planned operations thus avoided the difficulties of withdrawal and risks of escalation that may attend commitment of ground forces—two factors that this Office has identified as “arguably” indicating “a greater need for approval [from Congress] at the outset,” to avoid creating a situation in which “Congress may be confronted with circumstances in which the exercise of its power to declare war is effectively foreclosed.” Furthermore, also as in prior operations conducted without a declaration of war or other specific authorizing legislation, the anticipated operations here served a “limited mission” and did not “aim at the conquest or occupation of territory.” President Obama directed United States forces to “conduct a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster”; American airstrikes accordingly were to be “limited in their nature, duration, and scope.” Obama March 21, 2011 Report to Congress. As the President explained, “we are not going to use force to go beyond [this] well-defined goal.” And although it might not be true here that “the risk of sustained military conflict was negligible,” the anticipated operations also did not involve a “preparatory bombardment” in anticipation of a ground invasion—a form of military operation we distinguished from the deployment (without preparatory bombing) of 20,000 U.S. troops to Haiti in concluding that the latter operation did not require advance congressional approval. Considering the historical practice of even intensive military action—such as the 17-day-long 1995 campaign of NATO airstrikes in Bosnia and some two months of bombing in Yugoslavia in 1999—without specific prior congressional approval, as well as the limited means, objectives, and intended duration of the anticipated operations in Libya, we do not think the “anticipated nature, scope, and duration” of the use of force by the United States in Libya rose to the level of a “war” in the constitutional sense, requiring the President to seek a declaration of war or other prior authorization from Congress. (citations omitted, emphasis added)
Has the military operation anticipated by the President remained limited in its nature, duration, and scope, or has the factual predicate of the legal analysis changed? The Libya bombing campaign has now gone on for eighty or so days, as long as the Kosovo bombing campaign of 1999. Here is what the Financial Times reports today about the scope of U.S. involvement, based on a DOD memo that describes U.S. involvement as of mid-May:
US military operations in Libya are on course to cost hundreds of millions of dollars more than the Pentagon estimated . . . . Although it is working under Nato, the US is by far the largest contributor to operation Unified Protector. As of mid-May it was conducting 70 per cent of reconnaissance missions, over 75 per cent of refuelling flights and 27 per cent of all air sorties. The US has about 75 aircraft, including drones, involved in the operations and since the end of March has conducted about 2,600 aircraft sorties and about 600 combat sorties. . . . In total the US military has fired about 228 missiles as of mid-May.
The bombing campaign, and probably U.S. involvement in it, has only intensified in the intervening three weeks. In addition, and importantly, the mission has clearly changed from purely humanitarian protection to regime change. These alterations from what was originally anticipated (and represented) are bringing the Libya operation into tension with the OLC legal rationale that supported it. The operation will not come into clear conflict with the carefully written OLC legal opinion unless ground troops are introduced into Libya, which is hard to imagine. But as the days drag on, and as our deep involvement persists, it becomes harder and harder to represent that this mission is limited in nature, duration, and scope.
The legal tensions in the Obama administration’s war policy thus concern not just the War Powers Resolution, but also the original legal rationale for the intervention. As the facts continue to develop, it may be not just the WPR, but also the arguments of the original OLC opinion supporting the intervention, that counsel a legal duty to seek congressional authorization.