America's many military commitments can produce a fair degree of agenda crowding -- this week's war, it seems, is Afghanistan. But last week, the White House finally produced a legal theory explaining why it was okay that our forces are still engaged in hostilities in Libya without congressional authorization, even though the 60-day window permitted by the War Powers Resolution has expired and his authority is now being challenged. This news served to obscure the genuinely more important question of the overall merits of the Libya intervention, an operation the case for which looks increasingly weak.
On war powers, the administration's theory (generated over the objection of several key administration lawyers) is that these hostilities aren't actually hostilities, largely because American troops' lives aren't at risk. Instead, the United States is merely providing logistical support to a NATO mission while deploying some unmanned drones to drop the occasional bomb. Most legal experts seem to disagree with this analysis and it doesn't really pass the smell test. Meanwhile, the House could vote on a measure that disagrees with Obama's theory, limits our action in Libya and requires Obama to begin withdrawing. (Another House bill would allow operations to continue as they are for a year, and Sen. John Kerry introduced a similar bill in the Senate.)
That said, bombing without congressional authorization hardly puts us on the road to tyranny. Notwithstanding the apparent text of the constitution, executive-led war-making occurred at the very beginning of the American Republic with the Adams administration's Quasi-War against revolutionary France. Military policy vis-a-vis Native Americans has, likewise, always been conducted with a wide degree of executive unilateralism. This works in part because Congress retains massive practical leverage over absolutely everything. As we've seen this year repeatedly, the U.S. government literally ceases operation without regular congressional agreement to pass various appropriations and debt-ceiling increases. Members of Congress with a genuine desire to influence military policy can use their power over money to extract concessions. Similarly, members of congress regularly derail confirmation of executive branch appointees in order to influence the administration's policies. The nomination of Leon Panetta to serve as Secretary of Defense would have been a great opportunity for the Senate to have an impact Obama's conduct in Libya. Instead, his confirmation sailed through 100-0.
In other words, Obama has a free hand to conduct policy in Libya because, whining aside, few people in Congress appear to have a genuine desire to constrain him. Their desire is, instead, to whine. Taking action without a congressional vote was, in my view, worse than a crime--it was a mistake. Obama is now fully exposed to criticism for bad results of his policies, without anyone needing to have specified alternatives.
Such criticism is, meanwhile, richly deserved.
Policy in Libya has, from the beginning, been driven by a basic tension between an American policy of regime change and a United Nation's mandate to use force solely for the purposes of protecting civilians. Administration officials are perfectly capable of explaining how this is non-contradictory in principle. In practice, however, it's led naturally to a NATO military campaign that tends to simultaneously go further than its legal mandate without achieving regime change. The lingering standoff, meanwhile, is fracturing the tenuous political coalition behind the bombing. The government of Italy is starting to bail on the operation as is the head of the Arab League.
Meanwhile, if you look at anti-democratic activities in states such as Bahrain and the United Arab Emirates to say nothing of the horrifying massacres in Syria it's difficult to understand what consistent principle we're acting on. Intervention in Libya was justified in part as a way of providing momentum for the "Arab Spring," but I'm now haunted by the thought that it may have emboldened demonstrators to expect more help from the United States than we were willing to provide, costing many their lives.
In the end, we may fail at removing Muammar Gadhafi from power. That would be bad. Alternatively, we may succeed, at which point we'll be left to cross our fingers and hope that whatever replaces him is better. Until then, we should ask whether there's really no better way to spend $40 million a month on a humanitarian undertaking. Surely we can think of ways of helping people that don't involve killing some other people. But a presidential proposal for a huge increase in foreign aid would be dead on arrival in Congress, with no hope of finding a legal loophole to authorize unilateral executive action. How it is we've gotten to that point is, it seems to me, the more important issue than the ins-and-outs of the War Powers Act.