April Fool OLC Memo Legitimizes Obama's Libyan War
On April 1, 2011, a quite appropriate date for what follows, the Office of Legal Counsel (OLC), the office in the Justice Department which is supposed to supply advice to the Executive branch on whether what it is doing is legal, opined that
the President has the power to commit United States troops abroad,” as well as to “take military action,” “for the purpose of protecting important national interests,” even without specific prior authorization from Congress.
Moreover, the President as Commander in Chief “superintend[s] the military,” Loving v. United States, 517 U.S. 748, 772 (1996), and “is authorized to direct the movements of the naval and military forces placed by law at his command.”
The OLC, of course, is the same office from which John Yoo wrote his famous memos legitimizing torture and advancing the theory that the President had unlimited powers in war. The war Yoo had in mind was the war on terror, and, as that essentially had no end, the dictatorial power he sought for the President was effectively permanent. Although John Yoo is long gone from the OLC, his view of the imperial Presidency and unilateral Executive lives on there.
The Framers, however, never meant to grant such power to the President as the OLC asserts. Even Alexander Hamilton, the most energetic promoter of Presidential power, rejected it. In Federalist 69, he wrote,
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies—all which, by the Constitution under consideration, would appertain to the legislature.
The con that the OLC is trying to sell is to equate bad practice, Presidential end runs around Congress' war making power and the often Congressional acquiescence in these run arounds, with Constitutional legitimacy. But even in this history of Executive excess and Congressional failure to live up to its responsibilities, the pattern heretofore has been for there to be at least some consultation with Congress. And nothing precludes and the Constitution demands that when the President does use military force on an emergency basis that Congressional authorization and approval should be subsequently obtained.
The OLC opinion simply ignores all this. Rather it dresses up specious arguments to make them sound as plausible as possible.
The memo says Obama's use of force in Libya turns on two questions:
first, whether United States operations in Libya would serve sufficiently important national interests to permit the President’s action as Commander in Chief and Chief Executive and pursuant to his authority to conduct U.S. foreign relations; and second, whether the military operations that the President anticipated ordering would be sufficiently extensive in “nature, scope, and duration” to constitute a “war” requiring prior specific congressional approval under the Declaration of War Clause.
The national interests it cites are "preserving regional stability and supporting the UNSC’s credibility and effectiveness." These are laughable. We have never had any interest in the stability of the Middle East. We have perpetuated the Israel-Palestine conflict and supported dictators throughout the region as long as we were assured of access to oil and the routes by which it was transported. Between oil and stability, oil has won everytime.
As for the UN Security Council, the US has a veto. Presidents only support those Security Council decisions with which they already agree. All the others get vetoed or get pulled under threat of veto. So really the US doesn't support the Security Council per se but rather uses it as a mechanism to legitimize certain of its foreign policy objectives. There is a world of difference between this and what the OLC maintains.
As for the Libyan war not being a real war, tell that to the people dying in it. The OLC's bizarre reasoning is that, as long as the scope and duration are limited, this war is too small to count, both under the Constitution and the War Powers Act. But on March 23, 2011, Defense Secretary Gates in a speech in Cairo admitted that the Libyan war will exceed the "small war" legalism the OLC is relying on.
Even in its own terms, when we look beyond the OLC's rhetoric to the substance of its arguments, we find that they are empty. But then that is to be expected. The whole exercise of the OLC memo is to give, not a legal defense but a legal sounding rationale, to what is the Executive's unconstitutional usurpation of Congress' war making power.
(This will be an extension of item 251 of my Obama's Scandal list.)