War Powers

Obama's Legal Legacy of Light Footprint Warfare

By Jack Goldsmith, Matthew Waxman
Tuesday, July 26, 2016, 1:16 PM

We have a new piece in The Washington Quarterly, titled “The Legal Legacy of Light-Footprint Warfare.” President Obama’s approach to military intervention has generally emphasized stealthy and often long-distance warfare as an alternative to his predecessor’s heavy “boots on the ground” approach. We review the executive branch legal interpretations used to justify “light-footprint” military actions. Together these interpretations comprise a potent legal legacy that risks undermining important political checks.

We argue:

Undergirding Obama’s use of drones, cyber-operations, and Special Operations forces are constitutional and statutory innovations that enhance the President’s discretion to start and continue military interventions that deploy these tools. Many of Obama’s predecessors, of course, widened presidential war power. But Obama’s innovations pose a distinctive challenge to U.S. democracy and military strategy because light-footprint warfare does not attract nearly the same level of congressional and especially public scrutiny as do more conventional military means.

Congress has been complicit in these developments, which can be seen from two perspectives. More optimistically, the resulting policy has generally met with political approval: “Especially in an era marked by fierce partisan gridlock in other contexts, the formalities of overt congressional approval might matter less than the reality of broad congressional and public support for the president’s military actions.” However, “[a] more pessimistic view … would acknowledge light-footprint warfare’s costs to U.S. democracy and its risks to a politically sustainable foreign policy over the long run.”

We conclude by acknowledging that a requirement that Congress formally approve each new development against a quickly shifting enemy is not realistic and probably not wise, but nonetheless propose a mechanism for forcing Congress to engage on these issues more regularly. Our aim in this piece is to spark discussion, so please let us know your thoughts.