President Obama is in a legal and political pickle concerning his unilateral intervention in Libya. The mission is much harder than he anticipated, and it has taken much longer (months, not days) than he thought it would. Congress is growing increasingly unhappy, and belligerent, about the aims and clarity of the mission and the extent to which it has been consulted. As the political pressure on the White House has grown, so too have the legal problems. The factual assumptions of the original constitutional justification are increasingly at odds with the reality of the intervention over time. The intervention also appears to most observers – including the Office of Legal Counsel and the DOD General Counsel – to have violated the War Powers Resolution. The legal problems, in turn, have angered Congress further.
The silver bullet to make these problems go away is a congressional authorization for the Libya operation. Getting Congress on board – which the White House should have done in the first place, out of political prudence if not legal compulsion – would eliminate the political bickering and would patch over the legal problems, rendering them practically insignificant. It seems like most members of Congress support the Libya intervention in theory. The problem is that the Congress as a whole feels dissed, many Republicans see a political opportunity, and blessing the President’s unilateral war-making long after the fact might be viewed as a precedent that effectively gives away some of Congress’s constitutional war powers.
Still, there might be room for a deal if the White House is willing to grovel and give up a bit. One analogy that might point the way to a deal is what happened in Lebanon in 1983. (Bruce Ackerman and Oona Hathaway raised this analogy a few weeks ago.) In brief, Ronald Reagan sent the Marines to Lebanon, without congressional authorization, as part of a U.N. Peacekeeping Force. For nearly a year he filed reports under the WPR, but he did not report under section 4(a)(1) (concerning “hostilities” or imminent threats of one) and this did not feel the need to withdraw the troops after 60 or 90 days under Section 5(b) of the WPR. When the Marines began to suffer casualties in 1983, Congress began to threaten to to cut off funds for the intervention. In September 1983 the Congress and President Reagan agreed on legislation that (a) stated that Section 4(a)(1) of the WPR was operative, and (b) authorized (with conditions) the Libya mission for a further 18 months. Soon afterwards, 241 Marines in Lebanon were killed by a suicide truck bombing and President Reagan withdrew the Marines the following spring.
Congress reached a similar compromise with President Clinton in Somalia. To make a long and familiar story short: The first President Bush sent in troops in December 1992 without congressional authorization as part of a U.N. humanitarian mission; the mission morphed; there was a minor dispute over whether the WPR was implicated and if so whether the clock ran; U.S. soldiers were killed; Congress got angry about the unclarity of the mission, and not being consulted, and about President Clinton's indifference to the WPR; and compromise legislation was reached in which Congress approved the use of U.S. Armed Forces in Somalia with a relatively short time limit on the authorization.
In Lebanon and Somalia we see the outlines of a deal for the Libya intervention, even at this late date: Congress blesses the intervention in exchange for the President’s acknowledgment of the applicability of the WPR and, perhaps, a time limit or other conditions on the intervention. With the right wording – the devil is obviously in the details – both the President and members of Congress can save face. Members of Congress who support the intervention in theory can credibly claim to have stood up to the President and vindicated the purposes of the WPR by forcing him to seek Congress’s approval for an intervention that lasts more than a few months, and by imposing other conditions on the intervention’s continuance. For the President the calculation is more complex. A deal with Congress can make his growing political and legal problems (including, potentially, months of hearings, subpoenas, and the like) go away. It might also free him up to be more aggressive to end the intervention sooner than otherwise. One important disanalogy with Lebanon and Somalia, however, is that those situations involved peacekeeping where a time limit was not terribly unwelcome and was certainly not deadly to the mission. A time limit on the Libya intervention, by contrast, might be harder for the President swallow, since Libya involves offensive uses of force and a time limit would incentivize Gaddafi to hold out. The President might face a de facto time limit in any event if his appropriation authority runs out this Fall, so accepting one now might not cost him much (and he might have more bargaining power now than later). Perhaps he can negotiate for a time limit with a waiver provision if certain congressionally mandated conditions are satisfied. Or perhaps Congress will be satisfied with a WPR concession alone without a termination provision, or President Obama can make concessions to Congress along other dimensions. Even such broader concessions should enable the President to continue in Libya without further problems at home, and the Reagan and Clinton precedents provide him with necessary cover to back down from his unilateral assertions of presidential power.