I’m disheartened to find my friend John Yoo lending his voice to the bogus claim that opposition to U.S. intervention in Libya’s civil war makes one an “isolationist.” And Ramesh Ponnuru is right to point out that the constitutional questions arising out of the Libya intervention are much more complex than John suggests.
If we were only talking about the House Republicans’ decision to make President Obama’s violation of the War Powers Act the focal point of their opposition, John’s legal criticism would be well taken. At least, I think it would: I can’t say for sure, because John does not specifically mention the WPA. Instead, he suggests that there was a generalized Republican opposition to “the president’s authority to use force abroad to protect U.S. national-security interests.” I don’t think that accurately portrays the opposition — but we’ll come to that. Assuming the WPA is part of his beef, I agree with him. The WPA is almost certainly unconstitutional. Where the Constitution has given the president a war power, that power cannot be nullified or diminished by a statute. Furthermore, the Republican emphasis on the WPA smacked of political opportunism: Many of the same Republicans who objected to Obama’s violation of the WPA supported President Bush’s terrorist-surveillance program, even though it ran afoul of the constitutionally dubious FISA statute. Symmetrically, Democrats who loved FISA when Bush was in the hot seat now think the WPA is much ado about nothing.
The Republicans should have based their opposition on Congress’s constitutional war powers, not the WPA. On that score, let’s put to the side my humble opinion that, as a limitation on presidential war-making, Congress’s power to declare war is neither as trivial as John argues it is nor as muscular as, say, Ron Paul contends. There is support for each of these contentions, and the controversy simply is not going to be settled. Where does that leave us? It depends on the situation. I think there are four relevant scenarios.
First, there is virtually unanimous agreement on the proposition that the president has not only the power but the duty to use force to repel an attack against the United States — he need not wait for congressional authorization. Second, there is a consensus — or something very close to it — that this proposition extends to circumstances where the United States is under imminent threat of attack. I think even Representative Paul would agree with that. But then things get murkier. There is the third situation, the one John describes: The president decides, in the absence of an attack or threatened attack, and without congressional authorization, “to use force abroad to protect U.S. national-security interests.” There is less support for the notion that this is constitutional. I happen to agree with John that it is, and I believe most informed commentators concur. But it is a closer question, and there is a strong counterargument.
That brings us to situation No. 4, where the pendulum swings in the other direction. This is the notion that the president may, without congressional authorization, initiate a military attack abroad under circumstances in which the U.S. has not been attacked or threatened, and in which there are no vital U.S. national-security interests at stake.
I appreciate John’s position that Congress’s power to declare war is merely authority to set the legal relations between belligerent nations in a state of total war. But that is a controversial view, and others who’ve studied it conclude that the war power is a more meaningful check on the president’s power to take the nation to war in the first place. For what it’s worth, I think Congress’s war power is broader than John believes it is. In my mind, the exceptions to Congress’s power to declare war involve exigencies in which the nation’s vital interests would be threatened — perhaps existentially imperiling us — if the president’s hand were stayed until Congress could convene and act. Barring that, the president should seek congressional authorization.
In any event, situation No. 4 describes Libya. It is not enough to concede (as Defense Secretary Robert Gates did) that there was no vital U.S. interest at stake. Qaddafi was actually considered by the Bush and Obama administrations to be an important American ally against our wartime enemies: al-Qaeda and its affiliates. In part, this was because he was providing our country with intelligence about jihadists in Libya — Libya having been home to more jihadists who traveled to Iraq to fight American troops than any other country per capita. So valuable did President Obama consider Qaddafi that, with strong bipartisan support, the administration increased aid to his regime this year, including military aid. That there was American blood on Qaddafi’s hands and that he continued to be a serial human-rights violator (the two justifications most often cited by those favoring intervention in Libya) did not seem to be a problem from 2003 through early 2011, when our government embraced Qaddafi and declared his terrorist atrocities to be a settled matter.