Congress Surrenders the War Powers: Libya, the United Nations, and the Constitution, Cato Policy Analysis No. 687

8/3/2019 Congress Surrenders the War Powers: Libya, the United Nations, and the Constitution, Cato Policy Analysis No. 687

1/32

Executive Summary Since the Cold War the United States has

fought three major wars. Congress authorizedeach of these wars. The president has also ini-tiated several limited wars. These limited warshave not been explicitly approved by Congressas required by Article I of the Constitution. Areview of the history of making limited warssuggests several conclusions. First, the presi-dent has assumed a de facto power to begin andpursue a limited war, understood as a strugglewhere no American combat deaths are expect-ed. Second, Congress has at times been highly critical of such wars but also highly deferentialto the president in cases where the wars werebrief and popular. Third, an active and critical

Congress can shape the presidents choices anddecisions about such wars. Fourth, the public isoften skeptical about limited wars and strongly supports congressional approval of such un-dertakings. Finally, until recently, presumedpresidential authority under the Constitutionwas more important than the approval of in-ternational institutions in legitimating limitedwars. In Libya the approval of the United Na-tions Security Council and other internationalinstitutions was essential to legitimating thewar according the Obama administration. Thisincremental transfer of the war powers to inter-national institutions contravenes the republi-can nature of the United States Constitution.

Congress Surrenders the War Powers Libya, the United Nations, and the Constitution

by John Samples

No. 687 October 27, 2011

John Samples is director of the Center for Representative Government at the Cato Institute. He is the author of The Struggle to Limit Government (2010) and The Fallacy of Campaign Finance Reform (2006).


2/32

2

Practicecannot trump

fundamental law in a constitutional

democracy.

IntroductionThe United States Constitution vests the

power to declare war in Congress, leavingto the executive the power to repel sudden

attacks.1

By the middle of the last century,the nation had drifted far from the originalunderstanding. President Truman waged theKorean War absent congressional authoriza-tion, and President Johnson prosecuted the Vietnam War with minimal congressionalauthority. 2 Presidents also used force abroadon multiple occasions without congressionalapproval. This growth of executive power,along with failure in Vietnam, led Congressto enact the War Powers Act over the veto of President Nixon.

The postCold War era has been differentand more complex. Presidents have continuedto claim a largely unfettered power to initiateand to make war as they see fit. But their prac-tice of war has been different. Presidents havesought (and received) congressional supportfor the three wars similar to Korea and Viet-nam. The Persian Gulf, 3 Afghanistan, 4 andIraq5 wars all involved (and were expected toinvolve) troops in combat and thus, casualties.Both wars involving Iraq followed nationaldebates that ended with congressional state-ments of support or authorization for thewar. The authorization for war in Afghanistancame quickly, with little debate, as might be ex-pected in the immediate aftermath of the Sep-tember 11 attacks. The Bush administrationcampaigned for several months to gain con-gressional assent to the 2003 invasion of Iraq.

Since the end of the Cold War, presidentshave initiated smaller wars in Bosnia, Somalia,Kosovo, and most recently, Libya. The Clintonadministration also expected to make war inHaiti but found that the threat of force suf-ficed to change that regime. Clinton also usedforce several times against Iraq. Congress didnot constitutionally approve any of these ac-tions ex ante although one chamber or anoth-er did offer support in some cases. In four of five of these cases, the Office of Legal Counsel(OLC) in the Justice Department advised thepresident that the practice of war-making by

his predecessors justified acting absent con-gressional approval.

The OLC notwithstanding, practice can-not trump fundamental law in a constitu-tional democracy. We the People establish a

Constitution to empower government and toconstrain its practice. 6 In this way, a constitu-tional democracy strives to live under the ruleof law. The rule of politics, in contrast, definesthe Constitution through what politiciansdo.7 Law becomes over time a function of, nota constraint on, the practice of politics.

Practice cannot trump constitutionaltext, but it still may merit study. Though law should dominate practice, it might be the casethat government officials believe that practiceinforms and reveals the law. The study of the

practice of war-making, for example, mightindicate how the law might develop, constitu-tional propriety notwithstanding. A study of the practice of war-making might be under-taken to advise policymakers to intervene in a path of development to retain or restore con-stitutional propriety. The study of the prac-tice of war-making might affirm rather thannegate constitutional law.

In the United States, starting and fight-ing a war may be done in four ways:

1. Congress authorizes a war which is theninitiated and made by the executive (aswe have seen, this is the constitutional-ist position).

2. The executive initiates and makes a warat his discretion (the presidentialist po-sition).

3. The United Nations Security Council(or other relevant international body)authorizes a war which is then initiatedand made by the executive (weak inter-nationalism).

4. The United Nations Security Council(or other international body) authoriz-es a war which is then obligatory for theexecutive to initiate and make (stronginternationalism). 8

This policy analysis examines the prac-tice of limited wars in the postCold War


3/32

3

Congress canlimit presidentialdiscretion beyonits formal legalpowers.

era. During the Cold War such limited warscould be justified as a response to Soviet ag-gression. After the Soviet threat dissolved,such wars required a new justification andperhaps a different kind of practice. Here I

define practice more broadly than doesthe OLC. The latter concentrates on theactions of presidents and legal replies by Congress in limited wars. That concentra-tion ignores ways Congress can limit presi-dential discretion beyond its formal legalpowers. Moreover, the OLC briefs overlookthe role of public opinion in the practice of war-making. Given the importance of publicsupport in U.S. politics, this exclusion dis-torts their account of the practices at issue.

For the conflicts enumerated here, I pro-

vide a brief framework for understanding eachcase and examine the actions of presidents andCongress in the context of public opinion. Ithen examine the similarities and differencesbetween Libya and the earlier cases. A strugglebetween the constitutionalist and presiden-tialist positions (positions 1 and 2 above, re-spectively) informs each case including the re-cent war in Libya. However, I argue that Libya is also different in an important way. It repre-sents an additional step toward weak inter-nationalism (position 3 above), a move thathas been obscured by the continuing and tra-ditional debate between the constitutionalistsand the presidentialists about the war powersclause. I then contend that weak internation-alism contravenes values central to Americanrepublicanism. This analysis closes with someproposed ways to counter this trend.

SomaliaIn early 1992 the ruler of Somalia, Moham-

med Siad Barre, was driven from power after a 22-year reign. A civil war ensued among well-armed clans. The fighting, along with an acutedrought, led to famine. In July the United Na-tions Security Council endorsed a plan to air-lift food and medicine to Somalia. The relief effort did not work. Armed gangs stole muchof the food and medicine. 9

Some in Congress sought a U.S. interven-tion in Somalia. A senior Republican sena-tor, Nancy Landon Kassebaum of Kansas,called for a UN security force to protect foodshipments. A Select Committee on Hunger

chaired by Democrat Tony Hall of Ohio alsofavored a UN force to protect food shipments.The George H. W. Bush administration, incontrast, said peacekeepers should not bedeployed until there was a ceasefire. In early August the Senate approved a resolution de-manding that President Bush urge the UN tosecure food shipments to Somalia. The Houseof Representatives concurred a week later. 10The public was not engaged in the Somalianquestion. 11

The Bush administration relented slowly.

In September the president announced thatfour ships and 2,100 marines would sup-ply offshore support for UN peacekeepers inSomalia. 12 Later in November, with no pub-lic notice, the outgoing president offered theUN Secretary General a large U.S. contingentto dampen conflict in Somalia. In DecemberBush announced that up to 28,000 U.S. sol-diers would go to Somalia as part of the UNeffort.13 Bush claimed that only the UnitedStates had the resources to carry out this mis-sion to save thousands of innocents fromdeath.14 As Bush said in his speech announc-ing the undertaking: I can state with con-fidence we come to [Somalia] for one reasononly: to enable the starving to be fed. 15 HouseSpeaker Thomas S. Foley (D-WA) agreed withBush, citing the grave humanitarian conse-quences of inaction. 16 Some important mem-bers of Congress remained cautious. 17

Once announced, majorities of the publicsupported the Somalian effort. From Decem-ber 1992 to March 1993, no fewer than 71percent of the public supported a relief effortinvolving American troops in that nation. 18 Even at the start, when support for the mis-sion was high, a strong majority said the effortshould undertake only a limited role of reliev-ing misery.19 Another survey found supportfor humanitarian assistance and majority opposition to the United States disarming thefactions in Somalia. 20 A majority doubted the


4/32

4

The UN actionwas a permission

that created anational interest,not a law creating

a duty.

United States should try to solve Somaliaslong-term problems. 21

President Bush sought advice regarding hispower to order troops to Somalia. The Officeof Legal Counsel at the Department of Jus-

tice, the traditional adviser to presidents onsuch questions, offered an opinion that playeddown the potential for fighting. The U.S. mili-tary was engaging in the distribution of hu-manitarian relief in Somalia. The humanitar-ian task might require the troops to engagein more purely military actions, such as self-defense and the creation of safe corridors forthe provision of aid. But the military actionswould be humanitarian in nature. The WarPowers Resolution was not relevant. 22

The OLC concluded that President Bush

had the authority to deploy the troops absentexplicit agreement from Congress. It arguedthat the president could order troops intoforeign lands to protect important nationalinterests, including protecting the lives andproperty of Americans (such as those living inSomalia or engaged in the relief effort there).The national interest extended also, so saidthe OLC, to defending the lives and property of foreign nationals. Finally, the OLC con-tended maintaining the credibility of UnitedNations Security Council decisions, protect-ing the security of United Nations and relatedrelief efforts, and ensuring the effectiveness of United Nations peacekeeping operations canbe considered a vital national interest. TheUN resolution, however, was not a precondi-tion for the mission. 23 The UN action was a permission that created a national interest,not a law creating a duty.

Congress eventually more or less approvedof the mission. On February 4, 1993, the Senateapproved by voice vote.24 The voice vote meantno individual senator need take responsibility for the mission. The Senate vote and the voicesof skepticism came two months after the de-ployment. 25 Almost four months after theSenate approval, the House authorized U.S.participation in the UN mission to Somalia by 243 to 179. Some House members queried theadministration about the relevance of the WarPowers Act. The administration argued that

the law was not applicable because the Bushadministration had not intended to engagein combat and no hostilities had taken placeup to that point. 26 The administration wouldreiterate this position later, even after fighting

had broken out in Somalia.27

In early summer 1993 the Somalia missionchanged. The fighters of Mohamed Farrah Ai-did, a Somalian gang leader, attacked the UNpeacekeeping force, leaving 23 Pakistani sol-diers dead and 59 wounded. 28 U.S. soldiers leda series of attacks in June that culminated in a full assault on the headquarters of Aidid. Thebattle led to the death of 5 UN soldiers and 60civilians. President Clinton saw the full assaultas a response to the earlier attack on peace-keepers: Aidids forces were responsible for

the worst attack on U.N. peacekeepers in threedecades. We could not let it go unpunished. 29 At this point, the United States was at war inSomalia with a native armed faction.

The June fighting woke Congress up. Inearly September the Senate debated a resolu-tion about the incipient war. Sen. Robert Byrd(D-WV) proposed a bill that would have cutoff funding for the effort within a monthabsent explicit congressional consent to thewar. The Senate ultimately rejected the Byrdamendment in favor of a nonbinding resolu-tion asking the president to report to Con-gress by October 15 on his goals in Somalia and to garner congressional authorization forthe mission by November 15. In late Septem-ber, the House of Representatives passed anidentical resolution and also rejected a moreconstraining alternative. 30

The congressional response, though weak, vitiated the administrations commitmentto aggressive peacekeeping. The day beforethe House vote, Clinton told the UN Gen-eral Assembly that the United Nations sim-ply cannot become engaged in every one of the worlds conflicts. He also stated that a date certain should be set for withdrawingfrom the peacekeeping mission. More gener-ally, Clinton now spoke about the dangers of peacekeeping and the need to have a strictsense of limitations and conditions beforebeginning such efforts. 31


5/32

5

After the Octoberdisaster inSomalia, publicsupport for the

mission quickly vanished.

Then came disaster. On October 3, 1993, Army Rangers attacked an Aidid outpost.Eighteen Americans died and almost 80 werewounded. The losses were the worst for the Army since Vietnam. 32 Initially a majority of

Americans wished to send more troops topunish those responsible for killing Ameri-can soldiers. 33 The United States could wellhave become more deeply involved in Soma-lia, not least because, by his own account,President Clinton wanted Aidid to pay. 34

But it was not to be. Congressional oppo-sition to the Somalia mission grew. One hun-dred and forty-two House Republicans sentClinton a letter three days after the raid insist-ing that he pull out U.S. forces. Democratsalso criticized the administration. An immedi-

ate withdrawal seemed possible.35

Congressional resistance affected publicopinion. In late June, after the initial violence,even general questions detected a bare major-ity in support of the mission. 36 After the Oc-tober 3 disaster in Somalia, public supportfor the mission quickly vanished. Majoritiessoon rejected being there, 37 thought the mis-sion was a mistake, 38 and disapproved of sending more troops. 39 Majorities or (whenmore than one alternative was given) plurali-ties wanted to withdraw troops quickly. 40 By December the number desiring a quick endhad risen slightly. 41

The president adapted to the changedpolitical circumstances. At first, Clinton didindeed send more troops to Somalia, almostdoubling their number. But he also promisedthat all American troops will be out of Soma-lia no later than March 31 [1994], except for a few hundred support personnel in non-com-bat roles. The Senate voted to enact Clintonspromised deadline by eliminating most fund-ing after March 31. 42 In early November, theHouse approved the defense appropriationsbill by a voice vote. Clinton was locked in todeliver on his promised withdrawal. 43 Thecongressional resistance to the interventionafter October 3 had constrained the presi-dent, who feared greater limits on the missionand higher political costs, the latter imposedby members of his party. 44

Looking back, most Americans thoughtgoing into Somalia was the right thing. 45 But we should be wary of drawing conclusionsfrom questions that perhaps measure nationalpride more than policy opinion. At the time, 60

percent of the public also agreed that nothingthe US could accomplish in Somalia is worththe death of even one more US soldier. 46 Fif-ty-two percent thought it was mistake to getinvolved in the first place. 47 The nation alsoremained evenly divided on the question of whether the mission had been worth its cost. 48 The loss of American lives became a politicalconstraint on foreign adventures, especially those benefitting foreign nationals.

From the start, the Bush administration(including the Office of Legal Counsel) ob-

scured the risks attendant upon the missionto Somalia. The troops were there to useforce to protect the delivery of food and sup-plies. Once the public discovered the risks,support for the mission evaporated. Thepublic, unless beguiled, was unwilling to pay for humanitarian sentiment in the currency of American blood.

These political lessons would appear againin later limited wars. Presidents learned to re-fuse to call the use of force a war. Presidentscould make war on their own account if theuse of force was not a war, and of course, if the intervention was not a war, most peoplemight not worry that troops might be killed.This obscurity about the risks of interventionsmight suggest the interests at stake were small,since the undertaking had to be free of costs.Presidents perhaps believed otherwise, butthey were unwilling to persuade Congress orthe public.

HaitiFrom 1957 to 1986 Haiti was ruled by two

members of the Duvalier family. In late 1990, fol-lowing four years of military rule, Jean Bertrand Aristide, a Roman Catholic priest, won a presi-dential election but was ousted by a military coup in September 1991. Aristide demandedthe United States help him return to power in


6/32

6

An armed conflictinvolving the

(likely successful)invasion of

another nationdid not, according

to the Office of Legal Counsel,

constitute a war.

Haiti. In July 1993 the UN Security Councilpassed a resolution imposing an oil and armsembargo on Haiti to pressure the military government to return Aristide to power. Thatsame month, the Haitian military agreed that

Aristide would be restored as president by theend of October. 49President Clinton sent American engineers

to begin rebuilding the nation as part of theagreement; their ship was met by armed re-sistance at the Haitian port. Clinton sent U.S.ships to enforce the UN blockade. 50 Clintonacted as if he needed no approval from Con-gress to use force, but Congress did little inresponse.51 The Senate did approve a senseof Congress resolution that the U.S. military should not be involved in combat in Haiti

absent prior approval from Congress or a detailed report from the president prior tocommitting troops. The House affirmed thisamendment, 52 and 1993 ended with the mili-tary still in control of Haiti. The president hadnot ordered an invasion, and Congress haddone little to preclude one.

In 1994 Congressional Quarterlyremarked,Support for Aristide and dramatic actionin Haiti was not widespread in Congress. Yet Congress could not speak with one voiceagainst an invasion. In May the House op-posed the use of force in Haiti. 53 A month lat-er, in a different vote, a majority in the House voted against the amendment. 54 A number of Democratic House members changed theirminds over that month, deciding in the endto support the head of their party and the U.S.militarys commander-in-chief. 55

Clinton and the United Nations tightenedthe sanctions against Haiti. The presidentsrepresentatives spoke for the first time of vin-dicating democracy in Haiti through Americanforce. Congress sensed a momentum buildingtoward invasion. The Senate eventually passedanother sense of the Senate resolution stat-ing that a UN Security Council resolutionwas not sufficient backing for an invasion. 56 A more vigorous assertion of congressionalauthorityan amendment requiring the presi-dent to obtain congressional approval beforeinvading Haitiwas defeated handily. 57

Clinton went forward with a plan to invadeHaiti. 58 Clinton also sought the support for aninvasion from several nations in Latin Ameri-ca.59 He called up the Army reserves and madeready to launch Operation Uphold Democ-

racy. Clinton did not seek congressional ap-proval, and Congress did not try to stop him.Once again the president turned to the

Office of Legal Counsel for legal justifica-tion. OLC argued that Congress had essen-tially authorized the action provided thepresident gave certain information to thelegislature. He had done so, which suggestedthe invasion was constitutional. In regard tothe War Powers Resolution (WPR), the OLCconcluded that the law sought to preventthe United States from being engaged, with-

out express congressional authorization, inmajor, prolonged conflicts such as the warsin Vietnam and Korea, rather than to prohib-it the President from using or threatening touse troops to achieve important diplomaticobjectives where the risk of sustained mili-tary conflict was negligible. Since the con-flict in Haiti was not expected to be eitherlong or bloody, the WPR did not apply. Fi-nally, the OLC argued the Haiti invasion wasnot war in a constitutional sense: wardoes not exist where United States troops aredeployed at the invitation of a fully legitima government in circumstances in which the na-ture, scope, and duration of the deploymentare such that the use of force involved doenot rise to the level of war. 60 In sum, an armedconflict involving the (likely successful) inva-sion of another nation did not, according tothe OLC, constitute a war.

A similar argument justified the Somalia mission. In late 1992, however, everyone involved appeared to expect that troops woulddefend the delivery of food and supplies. TheOLC opinion stretched the limited war sce-nario to the invasion of another nation tochange its government. The expected prob-ability of success, according to OLC, trans-formed the invasion from a war into a nonwarfor legal purposes.

The invasion went forward despite littlesupport in Congress. The public also offered


7/32

7

The publicstill strongly supportedrequiringClinton to gaincongressionalapproval beforeinvading Haitiand afteroccupying it.

little support. Just before Clinton spoke andacted, a plurality of Americans affirmed theUnited States should not send military troopsto Haiti at all, in order to restore a democraticgovernment there. 61 More than two-thirds of

respondents at the time felt no national inter-ests were at stake in Haiti. 62 Unlike the presi-dent, strong majorities of Americans thoughtthe United States had no obligation to restoredemocracy in Haiti. 63 In any case, a majority doubted that an invasion would actually re-store democracy there. 64 The invasion cameoff peacefully thanks in part to a delegationled by former president Jimmy Carter, who visited Haiti at the last moment.

For all of Congresss failings, the publicstill strongly supported requiring Clinton to

gain congressional approval before invadingHaiti and after occupying it. No fewer thantwo-thirds of the public supported such con-gressional approval and as many as 80 percentdid so.65 Congress did not press the point atthe moment of attack, but it might have. Themission enjoyed little support, and the processleading to the invasion had contravened pub-lic expectations.

Moreover, even the success of the missiondid little to change public views. One monthlater a large majority opposed having the American troops in Haiti; the same would betrue six months later. 66 The mission had beenfrom the start undertaken and pursued inthe teeth of public opposition. That opposi-tion existed and grew even without Americandeaths in combat. Congress had done little togive that opposition effective voice. 67

President Clinton ordered the invasionof Haiti to restore a government to power.He ignored Congress and public opinion inpursuing what might have been expected tobe a war. Yet there was not war. No Americantroops were killed during the invasion. Theexpected war immediately became an occu-pation. The president had risked war (andunpopularity) in Haiti. He tried to declarewar without congressional approval and yetdid not. Clinton did prove that a presidentcould de facto invade a nearby nation in de-fiance of congressional and public opposi-

tion. Whether that war could have been sus-tained politically after Americans died willnever be known.

BosniaWar in the former Yugoslavia followed the

fall of communism in Eastern Europe. The for-merly communist-run country splintered intosmaller republics, including Croatia, Slovenia,and Bosnia-Herzegovina. What remained of the erstwhile federation was controlled by Ser-bia. Led by President Slobodan Milosevic, Ser-bia attempted to assert territorial and politicaldominance over the newly formed neighbor-ing republics, especially Bosnia-Herzegovina.

Open warfare erupted in 1992 after Bosnia-Herzegovina declared its independence fromthe Serbian-run Yugoslavian federation. 68

Initial American Responses American officials initially tried to keep

away from the war. But media stories aboutethnic cleansing by Serbs fostered callsfor action in Congress. 69 Military leaderswarned that involvement in the war couldbe costly and extended. But both chambersof Congress passed resolutions supportinghumanitarian efforts anyway. Two monthslater, lawmakers offered cash to refugeesand authorized the president to sell military equipment to Bosnia.

The Bush administration appeared am-bivalent. President Bush remarked in July 1992: The United States is not going to in- ject itself into every single crisis, no matterhow heart-rending, around the world. I amnot interested in seeing one single UnitedStates soldier pinned down in some kind of a guerrilla environment. 70 Nonetheless, theadministration solicited a UN authorizationto use force to assure that relief aid wouldreach Bosnia. The president said that foodand medicine should be provided to Bosnia-Herzegovina no matter what it takes. 71

Early on, the public seemed more willingthan the Bush administration to use forcein Bosnia. In August 1992, 46 percent of the


8/32

8

Gallup found thata large majority

said the presidentshould gain

congressionalapproval to attack

Bosnian Serbsfrom the air.

public wanted both air attacks and groundaction against Serbia. 72 By the end of theyear, support for going into Bosnia to deliverrelief supplies had increased. 73 On the eve of Bill Clintons inauguration, a majority (54

percent) favored sending U.S. ground forcesto restore peace and humanitarian aid in Bos-nia.74 A large majority also favored U.S. air-craft enforcing a no-fly zone in Bosnia. 75 Only 15 percent saw no national interest at stake inBosnia, while twice that portion, a plurality,thought military intervention was justified tostop ethnic cleansing. 76

As a candidate for the presidency, Bill Clin-ton had called for airstrikes to protect BosnianMuslims. As president though, he moved morecautiously. An early proposal by the adminis-

tration included committing troops to helpenforce a ceasefire agreement. The presidenttold a group near Detroit in February 1993that this plan did not imply committing ourground troops now or anything like that. 77

Congress passed resolutions. Both cham-bers enjoined the president to work towardan immediate end to the UN arms em-bargo against Bosnia. Absent the embargo,the Muslims could arm themselves. Theseresolutions also advised the president toundertake airstrikes against Serb positions.Senate leaders from both parties supportedthese proposals. At this time in early 1993,the administration did not favor airstrikes. 78Other congressional lead ers went further.Sen. Richard Lugar (R-IN) called for a largemultinational military to intervene in thecivil war.79 Clinton refused to put Americanlives in danger. Instead, American airplanesbegan dropping supplies to Bosnian Muslimsfrom a high altitude to virtually assure thecomplete safety of American personnel. 80

Peacekeeping Debate As the Bosnian situation grew more com-

plex in April 1993, Clinton engaged Congress,as indicated by a Congressional Quarterlyreport:

Clinton and his senior aides consultedin hours of meetings with members of Congress on several options: limited

airstrikes by the United States and itsallies on Bosnian Serb artillery emplace-ments; airstrikes on other economic ormilitary targets in Bosnia or in Serbia;and pressing the United Nations to lift

the embargo that prevented BosniasMuslim-led government from obtain-ing weapons. After an exhaustive 2 -hour White House meeting attended by a group of about 20 senior lawmakers April 27, Republicans and Democratssaid they were equally impressed withthe presidents willingness to hearthem out. 81

Should the members have been so impressed?Ryan Hendrickson notes, In practice . . . the

Clinton administration only paid lip serviceto the idea of consultation since the presi-dent had already decided to engage in peace-keeping in Bosnia prior to consulting withCongress.82

A significant number of members of Con-gress insisted on constitutional propriety.Ninety-one House members and a few sena-tors said in a letter to the president that Clin-ton should seek congressional authorizationto wage war in Bosnia. 83 This advice reflectedpublic opinion in April 1993 and later. Gallupfound that a large majority (84 percent) saidthe president should gain congressional ap-proval to attack Bosnian Serbs from the air. 84Two years later, support for congressional ap-proval remained high (79 percent). 85

The public had favored action in Bosnia at the beginning of Clintons administration.This support was fleeting. By late April 1993a decisive majority said we should not getmilitarily involved in Bosnia. 86 Peacekeep-ing remained popular for a while; almost 70percent agreed that the United States shouldcontribute a substantial number of troops toa possible United Nations peacekeeping forcein Bosnia.87 Even that support would fade: inOctober 1993, a majority opposed sendingtroops for peacekeeping duty. 88 That responseno doubt reflected the debacle in Somalia inearly October. By February 1994 Gallup foundthat 59 percent of respondents thought the


9/32

9

Clinton offeredCongress anultimatum:either supportthe missionor repudiatethe presidentscredibility in foreignnegotiations.

United States had no interests at stake in Bos-nia.89 The intervening disaster in Somalia hadrevealed the actual costs of interventions.

Airstrikes and After

The troubles continued in Bosnia in 1994.Clinton decided to support airstrikes to deterSerbian war-making. Congress did not autho-rize the attacks. The attacks worked initially;the Serbs drew back. Diplomats went to work. Yet soon the Serbs were back on the offen-sive, and Clinton called for more airstrikes by NATO. Congress refused to go along. Many members of Congress, especially Republicans,feared the airstrikes would lead to a sustainedengagement in the Balkans. 90 Clinton didnot seek congressional approval to renew air-

strikes. He did inform Congress of the renewedbombings which were said to be justified by a concern for the welfare of UN personnel. 91 Thepresidents actions were authorized by his ownbroad interpretation of the presidential powerto make war. Congress, however, did not chal-lenge Clinton on constitutional grounds;some prominent members even encouragedhim to escalate the war against Serbia. 92

The public gave contradictory signals aboutthe bombing. The public remained strongly opposed to ground troops being introducedto stop Serb attacks. 93 By February 1994, asthe airstrikes began, Gallup found that 59 per-cent of respondents thought the United Stateshad no interests at stake in Bosnia. 94 However,presidential action had an effect: the opposi-tion to airstrikes became more muted and a plurality of Americans favored them in early 1994.95 By April a clear majority favored at-tacks from the air. 96 At the same time, mostthought neither interest nor moral obligationcounseled American engagement in Bosnia. 97

The new GOP majority in the House didnot change matters much in early 1995. TheGOP House immediately passed the NationalSecurity Revitalization Act which requiredcongressional approval for any agreementbetween the president and the UN Security Council. The bill also stipulated that Ameri-can troops must serve under a U.S. com-mander and that Congress must be informed

beforehand about any UN Security Councilrequests for more funding for peacekeep-ing missions. 98 In the Senate the new major-ity leader Robert Dole introduced the PeacePowers Act of 1995.99 The bill would have

increased the presidents de jure war-makingdiscretion while restraining his ability to involve the nation in peacekeeping. For thatreason, Clinton was expected to veto the bill.None of these proposals had enough supportto override an expected Clinton veto.

Clinton Goes It AloneIn late August 1995 the United States

participated in much more extensive NATObombing of the Bosnian Serbs. Clinton carriedout these attacks without seeking approval

from Congress. Nonetheless, Congress madeno formal effort to stop the president. 100 These airstrikes ultimately led to a ceasefire inOctober and the start of peace talks in Novem-ber. The question of American troops on theground arose again. The Senate voted to callupon the president to seek advance approvalfor a deployment. Clinton resisted, referring tothe prerogatives of his office. 101

And at the end of October, just before peacetalks began, the House of Representatives ap-proved a resolution rejecting the presidentspromise to use 20,000 U.S. troops for peace-keeping in Bosnia. The resolution had bipar-tisan sponsors and support; the presidentsparty divided almost evenly on the question.The president backed down a bit and assuredCongress there would be time between thesigning of a peace agreement and the deploy-ment of troops for congressional debate andapproval. House Republicans did not believeClinton. A week after the first resolution, theHouse passed a second to stop deployment inBosnia absent explicit congressional approvalfor its funding. 102

Then came the peace accord on November21, 1995. The effort to stop the deploymenthalted with it. Clinton offered Congress anultimatum: either support the mission or re-pudiate the presidents credibility in foreignnegotiations. Congress, predictably, blinked.Many in the House concluded that Clinton


10/32

10

Surveys in 1995

found that even 25dead Americanswould turn two-

thirds of thepublic against the

undertaking.

was determined to carry through with the de-ployment and that Congress had no way tostop him. Some worried about credibility inforeign affairs. No one could say for sure thatcutting funding would not harm the troops.

The House sent a letter to Clinton askinghim not to send ground troops. The Senaterejected the earlier House resolution prohib-iting deployment by a vote of 22 to 77. TheHouse considered another bill to the sameend, which was barely rejected. Congress wasreduced in late 1995 to voting on bills thataccepted the deployment in fact, rejected themission in words, and expressed total supportfor the troops. 103

The OLC opinion on Bosnia dealt with thequestion of whether the president could or-

der troops into a peacekeeping mission. Theopinion did not treat the question of the presi-dents power to bomb Serbia. The OLC con-cluded that Clinton could order troops intoBosnia, since the parties in conflict agreed topeacekeeping and the likelihood of prolongedhostilities was low. Finally, the OLC arguedthat the president had long had the power todeploy troops to protect the national interest;in Bosnia, the vital national interests were alltied to the UN. 104

The public in the summer of 1995 remainedsupportive of sending troops related to UNpeacekeeping. 105 Other polls showed divisionon the question. 106 To add to the confusion,by late 1995 more than 60 percent of the pub-lic opposed committing troops to a Bosnianpeacekeeping force. However, 60 percent alsosupported Clintons decision to do so. Just overa quarter of the population supported his de-cision as commander-in-chief to commit thetroops even though they opposed the policy it-self.107 It may be conjectured that by deciding tocommit to the mission, Clinton created supportfor it. The Bosnian mission did not respond to a clear demand from the public. Once it started,the public supported it not on its merits butrather on the fact that the president had acted.

This support for peacekeeping existed aslong as there was a peace to be kept. Surveys inthat period found that even 25 dead Americanswould turn two-thirds of the public against

the undertaking. The prospect of more deathsproduced slightly more disapproval for thepolicy.108 One might wonder what the pros-pect of even one American death might do tosupport for the Bosnian mission. Gallup did

not pose that question to the public.In late 1996 Clinton announced that theplanned one-year stay in Bosnia would be ex-tended by 18 months. The extension was neces-sary, Clinton claimed, to create the conditionsfor rebuilding Bosnia. Members of Congress,especially Republicans, protested the decision.But it was another fait accompli. 109

In 1997 the House tried to bring the Bos-nia mission to a close by withholding fund-ing after its announced end in 1998. The finalbill approved by the Senate was much weaker.

While limiting the stay in Bosnia, the final ver-sion permitted the president to waive the limitby telling Congress why he planned to keeptroops in Bosnia and for how long. 110

In December 1997 Clinton announced forthe second time that he would not abide by his previously announced deadline to removetroops from the Bosnian peacekeeping mis-sion. Now no deadline would be honored. Heasked for almost $2 billion to fund the Bosnia effort. The House cut the peacekeeping fund-ing out of the defense appropriations bill.Sen. Kay Bailey Hutchinson and Robert Byrdsought to reduce the number of troops in Bos-nia. The Appropriations Committee removedthe peacekeeping funding from the defensebill; the full Senate restored it on a voice vote.Hutchinson also tried to reduce the numberof troops in Bosnia, to no avail. Joseph Lieber-man said, Where the rubber meets the road,[senators] are going to respect the commanderin chiefs power to decide.111 The missionalso attracted more support from the public in1997 and 1998. Of course, not one Americansoldier was killed by hostile fire from 1996 to2004 in Bosnia.112

Finally, in the spring of 1998, Rep. TomCampbell (R-CA) introduced a resolution en-titled Removal of United States Armed Forcesfrom the Republic of Bosnia and Herzegovina.The proposed resolution would have requiredthe president to withdraw American troops


11/32

11

These meetingswere designed toshow concern foCongress withou

actually involvinit in the decisionto go to war.

from Bosnia within 60 days absent congres-sional approval for their engagement. Theresolution also called for a judicial judgmentabout the constitutionality of the War Powers Act. The resolution failed 193 to 225. House

Democrats generally supported Clinton; only 13 voted for the resolution. The RepublicanHouse leadership did little to gain support forthe Campbell effort. Forty-three Republicans,including the chair of the House InternationalRelations Committee, ended up voting againstthe resolution. 113

Kosovo Just as the pacification and occupation of

Bosnia began, civil war broke out in anotherpart of the former Yugoslavia. Kosovo hadbeen an independent province of Serbia un-til 1989, when Belgrade asserted dominance.Ethnic Albanians, a majority in Kosovo, resist-ed for some years, leading to armed struggle by a rebel group, the Kosovo Liberation Army. Asthe fighting grew fiercer, many Albanians fled.In the summer of 1998, NATO made plans tointervene against the Serbs. 114

At first members of Congress seemed ready to involve the nation once again in a civil warwithin Serbia. In the spring and summer of 1998, Congress adopted resolutions condemn-ing the Serbs. 115 A sense of Congress resolu-tion followed that indicted the Serbian leaderfor war crimes and genocide. 116 (Congressdid not, however, resolve that the presidentshould send troops to protect the Albaniansin Kosovo). More than most, these resolutionswere simply sentiment absent action, empty gestures. Congress did include economic sanc-tions against Serbia in an omnibus spendingbill late in the year.

Secretary of Defense William Cohen claimeda right to carry out airstrikes to protect ethnic Albanians from Serbian forces absent approv-al from NATO, the UN, or the U.S. Congress.Secretary of State Madeleine Albright reachedthe same conclusion 117 based on Article 51 of the UN Charter, which provides for individualor collective self-defense.118 Both officials were

proposing attacking a sovereign state. Yet,according to Article 2 of the Charter of theUnited Nations, the Organization is based onthe principle of the sovereign equality of all itsMembers.119 Congress offered few protests

against these claims of authority. Later thepresidents national security advisor and a StateDepartment official would argue that the con-stitutional power of the commander in chief authorized the use of force without congressio-nal approval. 120

Congress divided once again over thewisdom of intervening. 121 Rep. Tillie Fowler(R-FL) offered an amendment to prohibit theKosovo deployment. 122 Doubts about theKosovo intervention were widespread in theHouse of Representatives but not widespread

enough. The Fowler amendment was defeatedhandily. The House later supported Americantroops in Kosovo as part of a NATO peace-keeping mission. 123

The Senate was more hawkish than theHouse and more favorable to the president.He reciprocated by meeting with some sena-tors prior to the beginning of the bombingof Serbia. These meetings were designed toshow concern for Congress without actu-ally involving it in the decision to go to war.Clinton also told Congress during this periodof his intent to use force. Clintons meetingspaid off. On March 23, 1999, the Senate sup-ported a resolution stating that the Presidentof the United States is authorized to conductmilitary operations and missile strikes againstthe Federal Republic of Yugoslavia. SixteenRepublicans and 42 Democrats supported theresolution. NATO and the United States wentto war shortly thereafter against Yugoslavia. 124

A few days after the bombing began, Clintonsent a letter to Congress arguing that he had un-dertaken the air strikes against Serbia pursu-ant to my constitutional authority to conductUS foreign relations and as Commander inChief and Chief Executive. He also mentioned Yugoslavias putative violation of UN Security Council resolutions and the UN Charter. 125 Infact, NATO and the United States did not seekUN authorization for the air attacks of March1999,126 presumably because it could not be


12/32

12

The NATO attackssupported by

President Clintonare thought to

have killed about600 soldiers and

500 civilians.

obtained. This war was undertaken by the U.S.president at his discretion; it was not legitimat-ed or authorized by the UN Security Council. Inhis letter, Clinton also did not mention Senateapproval of the attacks. That vote of support

was politically useful but not constitutionally necessary, from the presidents point of view. 127 The president did not seek an opinion aboutthe war from the Office of Legal Counsel at theDepartment of Justice.

An overwhelming majority of House Re-publicans refused to support Clintons policy.Rep. Tom Campbell (R-CA) invoked part of theWar Powers Act and forced the House to voteon two resolutions, one ordering a withdrawalof American forces and the other declaring waron Yugoslavia. The House leadership added

two others: one authorizing the air war andthe second demanding congressional approv-al before ground troops were sent to Kosovo.Only the last of these passed. The approval forthe air war failed in a tie vote. 128 Senate lead-ers refused to consider an explicit resolutiongranting approval to use force. They feared a divisive debate. The air war continued and thequestion of ground troops persisted into May.The House rejected an amendment prohibit-ing funding of an invasion of Yugoslavia. 129

By June 1999 the NATO bombing hadhad an effect: Serbia relented. 130 After a truce,NATO peacekeepers entered Kosovo to returnrefugees and to begin reconstruction. Speak-ing after the war ended, Clinton made it clearthat the United States had sought (and wasseeking) to overthrow Serb leader Milesovic.He also noted that no American soldiers haddied in combat. 131 American planes droppedabout 23,000 bombs and missiles on Yugo-slavia in the spring of 1999. 132 The NATOattacks supported by President Clinton arethought to have killed about 600 soldiers and500 civilians. They were the most aggressiveand sustained use of military force during theClinton presidency. 133

Congress later tried to control spendingon peacekeeping in Kosovo. In the spring of 2000 the Senate Armed Services Committeeapproved an amendment cutting funds forKosovo unless Congress authorized the ef-

fort.134 The amendment was later removedfrom the spending bill after Republican presi-dential candidate George W. Bush spoke outagainst it as a legislative overreach on thepowers of the presidency. 135

IraqThe United States fought two major wars

with Iraq in 1991 and 2003. Between thosetwo conflicts, the U.S. president used forceagainst Iraq several times. These attackswere episodic and were largely supported by both Congress and the public.

In 1993 ex-president George H. W. Bush visited Kuwait. Prior to his visit, officials un-

covered a plot to assassinate Bush, a planlinked to Iraq leader Saddam Hussein. In June1993 President Clinton responded to the plotby ordering 23 precision-guided missile strikeson Iraqi military posts. Clinton justified hisdecision by appealing to Article 51 of the Unit-ed Nations Charter (which recognizes a rightof national self-defense) and to the constitu-tional powers of the presidency. Members of Congress said little critical of Clintons deci-sion or its justification. Sixty-one percent of the public approved of the attacks. 136

President Clinton again used force againstIraq three years later. The United States hadsupported the Kurds in northern Iraq forsome time. However, the Kurds at this timewere divided. In 1996 one Kurdish factionappealed to the Hussein regime for supportagainst another faction which had acceptedarms from Iran. Hussein responded by at-tacking the Kurdish cities allied with Iran. Inturn, Clinton fired 44 cruise missiles againstIraqi military installations. Clinton justi-fied the response by arguing that Husseinthreatened his own people and the stability of the region. The presidents congressionaldefenders argued UN Security Council Reso-lution 688 legitimated the attacks. The reso-lution had passed in 1991 and authorizedmember states to take all necessary measuresto protect the Kurds. In 1996 all but one of the permanent members of the UN Secu-


13/32


14/32

14

In OLCs view,neither the

Constitution northe War Powers

Resolution wasrelevant since thewar in Libya waslegally speaking,

not a war.

American AmbivalenceWould outsiders intervene? The New York

Times reported that the U.S. defense secretary Robert Gates was concerned about gettinginto another war in the Middle East and wor-

ried about the political fallout of the UnitedStates attacking yet another Muslim country,even on behalf of a Muslim population. 147 Thedirector of national intelligence opined that theQadaffi regime would eventually win their civilwar. However, other members of the Obama administration favored regime change. Thesecretary of state set up a meeting with a rebelleader. The national security advisor outlinedways to drive Qaddafi from power short of a military attack. Anonymous sources assuredleading journalists that the president does not

think Qaddafi will prevail.148

The presidentthen appointed a special representative to therebels as the slide toward intervention contin-ued.149 The president himself said, Muammarel-Qaddafi has lost the legitimacy to lead, andhe must leave.150 He did not say whether theUnited States military would be willing to useforce to bring about his departure.

The Path to InterventionThen, as the rebel cause seemed lost, the

Arab League invited non-Muslim nations toimpose a no-fly zone in Libya. 151 This invita-tion to intervene turned out to be crucial. 152The United States pushed a United NationsSecurity Council resolution authorizing theuse of force.153 The Security Council passeda resolution backing a broad use of force onbehalf of the Libyan rebels. 154 The Obama ad-ministration would later argue that the UNresolution legitimated (i.e., made lawful) itsparticipation in the war in Libya. 155

In part, the UN resolution and the Ameri-can support for it embraced a proposed inter-national Responsibility to Protect civiliansfrom their government, articulated in 2005 ina UN World Summit outcome documentwhich is not legally binding. Section 139 of this document states

The international community, throughthe United Nations, also has the respon-

sibility to use appropriate diplomat-ic, humanitarian and other peacefulmeans . . . to help protect populationsfrom genocide, war crimes, ethniccleansing and crimes against humanity.

In this context, we are prepared to takecollective action, in a timely and decisivemanner, through the Security Council,in accordance with the [UN] Charter,including Chapter VII, on a case-by-casebasis and in cooperation with relevantregional organizations as appropriate,should peaceful means be inadequateand national authorities manifestly failto protect their populations from geno-cide, war crimes, ethnic cleansing andcrimes against humanity. 156

The UN resolution (and subsequent action by the Obama administration) thus related to a prior UN promise to protect civilians. 157

Shortly after the UN Security Council acted,President Obama demanded that Qaddaficease firing, abandon occupied cities, and stopattacking civilians. Absent compliance by Qa-ddafi, the United States and its allies would at-tack his forces. 158 He did not comply, and airattacks by the United States and its Europeanallies began. The Obama administration tookcare to assign leadership to Britain and France,the two nations that had pushed the hardestfor the intervention. The president promisedthat no ground troops would be used. 159

The OLC opinion on the Libyan war pre-dictably approved Obamas decisions. It em-phasized that the war served U.S. interestsby deflecting the putative threat to regionalstability and by preserving the credibility andeffectiveness of the United Nations Security Council. The OLC emphasized that the mis-sion would be limited in nature, scope, andduration. In OLCs view, practice and prec-edent indicated that the president could un-dertake limited wars at his discretion. Neitherthe Constitution nor the War Powers Resolu-tion was relevant since the war in Libya waslegally speaking, not a war. 160 Later after thewar had been going on for three months andno longer seemed limited in nature, scope,


15/32

15

The legalargument that thewar was not a wapersuaded few.

and duration, the Obama administrationwould say that war-making had ended withinthe original 60-day period. 161 The New YorkTimesreported shortly thereafter that the U.S.military had conducted 90 missile attacks

on Libya after the purported end of the at-tacks.162 Later, the State Departments legaladviser argued that the Libyan venture was a limited war: limited in mission, exposure of U.S. troops, risk of escalation, and military means employed and hence, not subject tothe strictures of the War Powers Resolution orthe Constitution. 163 The legal argument thatthe war was not a war persuaded few. Yet as wehave seen, it did connect to earlier presidentialclaims of discretion to make war.

Progress and StalemateThe attack on Qaddafis forces initially de-stroyed most of his air defenses. 164 The attackshad stopped the rout of the rebels; they didnot change the regime. NATO took over com-mand of the operation even as its memberssquabbled over goals and tactics. 165 As always,the European leadership said little about thereality of the war: the United States launchedmost of the cruise missiles and dropped about75 percent of the ordnance on Libya in thefirst part of the war. 166 The rebels began to advance under allied air cover. 167 Time soon re- vealed that the rebel military, as it sometimescalled, is not really a military at all. 168 The warin Libya settled into a stalemate based on thehope that time, circumstances, and luck wouldbring an end to the Libyan regime. 169 Remark-ably, a few weeks into the campaign, the sec-retary of defense denied that the Libyan civilwar posed any threat to the vital interests of the United States. 170 Finally, five months afterthe U.S. intervention in Libya, the rebel forcescaptured the Qaddafi compound in Libya. 171

Congress Goes Missing in ActionFor more than two months, the debate

about U.S. intervention in the Libyan civilwar took place almost exclusively within theObama administration, with Secretary Gatesand a skeptical military being pitted againstSecretary of State Clinton and allied hawks

within the administration interested in en-forcing a universal jurisdiction to protect for-eign nationals. 172

As in the 1990s a few senators (McCain,Lieberman, and Kerry) called for the use of

force.173

On March 1 the Senate appeared toendorse a resolution urging the United Na-tions Security Council to take such furtheraction as may be necessary to protect civiliansin Libya from attack, including the possibleimposition of a no-fly zone over Libyan ter-ritory.174 The foregoing language, however,was added at the last moment by the sponsorsof the resolution. Up to that point, the reso-lution had been limited to a condemnationof Libyas human rights record. The senatorswho voted for the resolution probably did not

realize it also contained a call to protect Liby-an civilians, words that could be construed tosupport attacking Libya. For this reason, weshould doubt the validity of the resolution asan authorization of military action. 175

President Obama acted after the Security Council resolution; he did not consult withCongress about going to war. In his letter toCongress on March 21, Obama spoke of keep-ing Congress fully informed about the mis-sion. He apparently did discuss his plannedassault with a few members of Congress. 176 However, House Democrats would later re- veal that the Obama administration had toldthem nothing about the Libyan interventionprior to the presidents decision to attack. 177 Congress was irrelevant to the actual decisionto go to war.

Initially, the president claimed he was act-ing consistent with the War Powers Resolution.His administration argued that their attackon Qaddafi was authorized by the War PowersResolution as an emergency, defined as animminent threat of a humanitarian catastro-phe.178 Yet the War Powers Resolution statedthat the president could only introduce troopsinto hostilities pursuant to a national emer-gency created by attack on the United States,its territories or possessions, or its armed forc-es.179 Threats to the lives of foreign nationalsare not mentioned in the law as authorizingthe use of force by the president. 180


16/32

16

The War PowersResolution

requireswithdrawal of

troops after 60days if Congress

has not approvedof the use of force

by a president.

Congress offered a divided response. 181 Sen. Rand Paul (R-KY) offered a resolution re-stating the views of Sen. Barack Obama thatthe presidents could not unilaterally make warunder the Constitution. The Senate tabled

Pauls resolution by a vote of 90 to 10.182

Asthe war went on, criticism in Congress contin-ued. A few members, generally the same onesthat had urged going to war, attacked Obama for not bringing about regime change in Libya.Most members seemed concerned about thehigh cost and ambiguous goals of the mis-sion.183 Other members worried about theintentions of the rebels. 184 Doubts notwith-standing, Congress did little concretely to stopthe attacks. In particular Congress did noth-ing to cut funding for the war in Libya. 185 The

House did pass an amendment to the fiscal2012 Defense Authorization Bill that wouldpreclude sending U.S. soldiers to Libya exceptto rescue other U.S. soldiers. 186

On May 19 the War Power Resolutions 60-day limit on the use of force in Libya expired.Nothing much happened. The New York Times focused on the possible defection of Libyas oilminister on the day the deadline passed. 187 Sixsenators sent Obama a letter asking whetherhe intended to abide by the War Powers Reso-lution. 188 Many in Congress appeared eagerto avoid mentioning the deadline or the presi-dents conduct. A few members introducedresolutions requiring the president to seek ap-proval for the mission. Obama sent Congressa letter asking for a resolution of support forthe war. For all practical purposes the WarPowers Resolution did not exist. As one law professor put it, Obama was not even both-ering to go through the motions. 189

Congress Engages Yet all was not well for the president in the

legislative branch. Two weeks later, Congressroused itself to a small debate and a vote onthe Libyan undertaking. Rep. Dennis J. Ku-cinich (D-OH) had introduced a bill requiringwithdrawal of the U.S. military from the Libya operation within 15 days. It seemed possibleKucinichs bill would pass. The Speaker of the House, John Boehner (R-OH), offered an

alternative proposing that the administra-tion provide, within 14 days, detailed infor-mation about the nature, cost, and objectivesof the American contribution to the NATOoperation, as well as an explanation of why

the White House did not come to Congressfor permission to continue to take part in themission. Congress made no effort to enforcethese demands. 190 Boehner was an unlikely critic since he had declared the administrationhad fulfilled its obligations under the WarPowers Resolution. 191 In any case, the Senatewas unlikely to go along with even Boehnersmodest complaint.

A week later the House passed an amend-ment to a Defense construction bill that saidnone of the money in question could be spent

in contravention of the War Powers Act.192

The next day the Speaker sent a letter toObama asking for a legal defense of the presi-dents ignoring the War Powers Resolution.The Speaker was quick to affirm the impor-tance of American leadership. Yet the letter didindicate a growing unhappiness in Congressabout the war. 193

The War Powers Resolution requires with-drawal of troops after 60 days if Congress hasnot approved of the use of force by a presi-dent. The executive may ask for an additionalmonth; if he does, the War Powers Resolu-tion permits a president to use force for up to90 days without congressional approval. Asthe 90-day deadline passed, Congress began voting on the Libyan venture. The House of Representatives ultimately passed two resolu-tions. The first rejected authorizing the warby a vote of 295 to 123; 70 Democrats votedagainst their president on that resolution.The second bill would have defunded military actions apart from ancillary efforts like searchand rescue, aerial refueling, intelligence, andso on. This bill would have ended the U.S. partof the war while supporting NATOs efforts.Speaker Boehner backed this second bill; itfailed 238 to 180 as 89 Republicans support-ed Obama while only 36 Democrats desertedhim.194 The House had signaled both oppo-sition to and support for the Libyan war; itwould neither authorize nor stop the venture.


17/32

17

A majority agreewith Gates thatthe United Stateshad no vital

interest in theLibyan conflict.

In contrast, the Senate moved toward en-dorsing the war in Libya. The Senate ForeignRelations Committee passed a resolution toauthorize the war for one year while preclud-ing the use of ground troops. 195 This resolu-

tion, however, did not reach the Senate floor.It was pulled by the Senate majority leaderwho apparently lacked enough votes to in- voke cloture and bring the resolution to a vote.Many Republican senators wanted to focuson debt issues. 196 The war was perhaps not sa-lient enough to those elected officials, at leastcompared to debt and deficits.

What can be said about the performanceof Congress regarding the Libyan war? As inthe 1990s, the House and Senate were divid-ed about the war with the latter being more

hawkish. At the same time, the House GOPleadership was willing to protect a Democraticpresidents alleged prerogatives if necessary. Yet there were also differences from the limit-ed wars of the 1990s. In general, Congress wasmore passive than in the past until the WarPowers Resolution deadlines passed. Congres-sional criticism of the conduct of the war may have contributed to presidential restraint inusing force. However, the president wished tobe seen as turning the war over to NATO early in the contest. Public unhappiness with thecosts of two futile wars in the region may offera better explanation of Obamas reticence.

Public DoubtsThe public offered initially lukewarm sup-

port for the war; as time passed, even thatdwindled. Asking whether the use of force by the United States was the right decision of-ten yielded plurality support for the war, priorto the advent of fighting or a few weeks in. 197 But as we have seen, the American public isloath to admit the nation has done anythingother than the right thing even when they oppose a war. Yet when respondents were of-fered a choice about Libya in March and laterin May 2011, between saying the war was theright thing or that the United States shouldnot be involved, the latter was the most fre-quent response in each case, with 47 and48 percent respectively. 198 By early June the

should not be involved answer had been em-braced by 59 percent of the public. 199 In Aprilbare majorities reported favoring the UnitedStates being part of the NATO effort. 200 Theno-fly zone itself attracted variable support in

March, ranging from overwhelming to divid-ed.201 The public was again ambivalent.The polling results also offered clear an-

swers to some questions, answers that may have concerned the White House. Most peo-ple thought the United States had no cleargoal for being in Libya. 202 A majority agreedwith Secretary of Defense Gates that the Unit-ed States had no vital interest in the Libyanconflict.203 A substantial majority also saidthe United States had no responsibility to dosomething about the fighting in Libya. 204 One

in five thought the United States had a moralobligation to stop the violence. 205 Over 60percent said removing Qaddafi would not beworth fighting and dying for. 206 Finally, thepolling showed overwhelming rejection of theuse of U.S. ground troops in Libya. 207 On thatpoint at least, President Obamas promises(and a congressional resolution) were in linewith public opinion.

As in the past, the public continued to sup-port Congresss role in authorizing wars. Fifty-five percent of the public thought Congress,not the president, should have final authority for deciding whether the United States shouldcontinue its use of military force in Libya. 208 Another 58 percent thought Obama waswrong to go to war without consulting Con-gress.209 The public believed in Congresssrightful powers more than most members of that institution did, judging by their silence andindifference in March and April 2011.

The United States intervention in Libya issimilar in some ways to earlier postCold Warinterventions. As in Somalia and the former Yugoslavia, the United States has intervenedin a civil war for humanitarian reasons. Thecommon defense promised in the U.S. Con-stitution had been extended this time to Liby-an nationals living in the eastern part of thatnation. As in the 1990s the president decidedto intervene without clear authorization fromCongress, which in turn did little more than


18/32

18

In the caseof Libya, the

president himself said a current

UN resolutionlegitimated his

war-making.

complain about presidential malfeasance.Like earlier cases, the Office of Legal Counselblessed the presidential power of war-making.The war in Libya was expected to be limitedenough to not be a war. Neither the War Powers

Resolution nor the Constitution was relevant. As in earlier cases, the effectiveness and cred-ibility of the United Nations created an in-terest that putatively justified a limited war. As in Kosovo, the bombing campaign wenton longer than expected. As with all interven-tions after Somalia, policymakers were wary of engaging U.S. troops in combat. As in earlierwars, the public was decidedly against putting American lives at risk to protect foreigners.

Weak Internationalism

Libya was also different than earlier interventions. Members of Congress had little to say one way or another prior to the war; the presi-dent acted quickly and then informed Con-gress. President Obama resolutely ignored theWar Powers Resolution, more than PresidentClinton had. Obama also generally ignoredCongress, and Congress was largely passiveduring the first two months of the war, whichsuggests that more than a few Republicanssupported the policy toward Libya. 210 For thefirst 60 days or more of the war, neither thepresident nor Congress acted as if the lattershould legitimate the use of force by the Unit-ed States.

But the president, unlike some of his pre-decessors, was unwilling to initiate and makewar on his own account. In Libya, PresidentObama was wary of making war in a third (orfifth if we include Pakistan and Yemen) Mus-lim nation. 211 He sought legitimacy for thewar by soliciting supporting resolutions fromthe Arab League and United Nations Security Council. Arguably, those institutions, and notthe U.S. Congress, held a veto over Americanwar-making. Of course, those institutions didnot refuse to endorse the war so we cannotknow for sure whether international supportwas necessary for the United States to enterthe Libyan war. It is clear that the presidentemphasized the UNs role. At the beginningof his letter to Congress announcing Ameri-

can participation in the war, Obama noted thefighting was authorized by the UN and sup-ported by other nations. 212 In a later reportto Congress, we learn that it is the presidents view that the war in Libya was legitimated by

a UN Security Council Resolution.213

Thatresolution in turn reflected an earlier open-ended commitment to protect civilians fromtheir government (the Responsibility to Pro-tect doctrine).

President Obama was not the first postCold War president to appeal to internationalinstitutions and the welfare of foreign nation-als to justify a war. As early as the Somalianintervention, the OLC had cited the defenseof foreign nationals as an interest justifyingpresidentialist war powers. It also said UN

agreement was not a precondition for Ameri-can action in Somalia. In Operation DesertFox and other uses of force against Iraq, Presi-dent Clinton had referred to UN resolutionsenacted years earlier.

In the case of Libya, however, the presidenthimself said a current UN resolution legitimat-ed his war-making. That which makes lawfulthe use of force presumably serves as a precon-dition for a war. In Libya, the president didindeed seek authorization to use force. The le-gitimacy provided by that authorization, how-ever, did not come from a domestic politicalinstitution like Congress. The war in Libya wasdifferent because it fit neither a constitution-alist nor a purely presidentialist point of view on the war powers. It was something different,a war that grounded presidential discretion ininternational institutions.

The Obama administration also stated thatthe UN Security Council Resolution regardingLibya limited the use of force solely to protectcivilians and civilian populated areas under at-tack or threat of attack and to enforce a no-fly zone and an arms embargo. 214 Those limitswere not observed as the fighting developed;the United States and its allies provided airsupport for Libyan rebels in a successful ef-fort to change the Libyan regime. The Libyanexample suggests that while the UN Security Council may hold power over the start of a war,it cannot control the scope of actual fighting.


19/32

19

Significantmajorities oppossacrificingAmerican livesfor the commondefense of foreigners.

Analysis and ProposalsIn practice the United States appears to be

developing a postCold War regime that dis-tinguishes between wars proper and limited

wars. In wars proper, soldiers are expected todie in fighting that may persist for a long time.They are wars that might turn out to be simi-lar to Vietnam or Korea. Although presidentsprotest and claim a power to initiate warsproper, in the end they seek congressional ap-proval to undertake such wars. We have alsodiscovered why they do so. The public valuesthe lives of American soldiers. They also be-lieve it is vital, when American lives are at risk,that the president get approval from Congressto use force. For this reason, a presidentialist

position on the power to make wars propermight be defended but not acted upon. Presi-dentialism in a war proper would risk politicaldisaster ab initio.

This analysis has examined the develop-ment of wars that are expected to be limitedin scope and duration. However, the practiceof such wars suggests they are defined not by limits on their scope or duration (some wenton long beyond initial hopes) but rather by theexpectation that few, if any, combat deaths arelikely. A limited war is fought from the air topreclude casualties. Politically, a president canignore public views on congressional approvalof fighting because a limited war involves nocombat deaths and hence is not salient for thepublic. The executive makes traditional presi-dentialist claims about how such limitedwars may begin. Presidents both argue thatlimited wars do not require congressional ap-proval and act on that claim.

A limited war might seem to be a funny kind of war. After all, it is a use of force thatmust not put any American soldiers in harmsway. Politically, however, the limited war con-cept seems well adapted to its circumstances. After showing early enthusiasm for the Soma-lia and Bosnia missions, the public has beenat best ambivalent toward limited wars forhumanitarian ends. Most often, majorities orpluralities report no sense of obligation to getinvolved in foreign fighting. Significant ma-

jorities oppose sacrificing American lives forthe common defense of foreigners.

If one believes limited wars should befought and yet cannot be authorized by con-stitutionalist processes, then a presidential-

ist view of limited war powers makes domes-tic political sense. The president might act tobegin and prosecute limited wars in the na-tional interest without undue constraint frompublic opinion (or Congress) either at the startor as the war continues. Such wars would bepaternalistic in that the president would givethe public policies it does not want but aregood for it (or the nation) in the shorter orlonger run.

Yet this argument for presidentialism begsimportant questions, especially for a president

like Obama who comes from a political tradi-tion that values international institutions. Af-ter all, what is good for the American public(whether they know it or not) might be badfor other nations or the world in general. Apresident might require external authoriza-tion to initiate a war precisely because he wasacting in the interests of the United States.Hence, a body that speaks for other nationsor the world in general would be the properinstitution to authorize the use of force by an American president. The Arab League and theUN Security Council functioned in this way inthe Libyan case. Indeed, even if Congress didauthorize a limited war, from this point of view, the UN should still have a veto over theuse of force; Congress may reflect the publicsdesire to impose losses on other nations. Forthe weak internationalist, both the presidentand Congress might be too parochial to legiti-mate a limited war, or properly irrelevant.

The weak internationalist argument promptsseveral objections. The U.S. Constitution em-powers Congress to tax and spend for thecommon defense. Put aside the question of whether Libyan nationals may be afforded thebenefits of the common defense. The powerto tax has a long historical and normative tieto representation. In part, giving the power todeclare war to Congress in Article I reinforcesthe tie between defense spending and repre-sentation. Shifting the power to legitimate


20/32

20

Libya is a limitedwar fought for no

vital interest atthe command of

a president whosought legitimacy for the war from

internationalinstitutions.

war to a body like the United Nations Security Council vitiates the connection between taxa-tion and representation in the United States.Representatives of foreign nationals do notrepresent American taxpayers; Americans do

not cast ballots in elections to select govern-ments who serve on the UN Security Council.Weak internationalism weakens representa-tive (and constitutional) democracy in theUnited States.

Some might object that weak internation-alism provides for representation of Americantaxpayers. The president must be re-elected. Voters may remove from office a presidentwho pursues an unpopular limited war. Butlimited wars seem tailor-made to avoid ac-countability in an election. Voters usually focus

on the health of the economy. Voters focus onwars that involve casualties. As we have seen, a limited war is defined by the expectation that American troops will not suffer any casualties.In other words, a limited war, so far as it is lim-ited, will not be salient for voters. Presidentsthen have a free hand to initiate and make warwithin the boundary set by the nature of a lim-ited war.

What will the future practice of limitedwars look like? Libya is a limited war foughtfor no vital interest at the command of a presi-dent who sought legitimacy for the war frominternational institutions while ignoring Con-gress. In this way, President Obama has qui-etly moved the practice of limited wars towardpresidentialism in service to weak internation-alism. This change is incremental; it is too soonto say that weak internationalism provides theregime for the exercise of the war powers in theUnited States. But Obama has taken an impor-tant step in Libya, and the next president may well be more inclined to see the UN as morean authorizer than a national interest. At leasta weak internationalist president could appealto current claims by Obama to justify his dec-laration of a future limited war; such is the way practices become norms and law. By acting asif international approval mattered, PresidentObama has strengthened the expectation thatinternational institutions should legitimatean American use of force.

This incremental move toward weak inter-nationalism has several problems. It essentially amends the U.S. Constitution and transfersthe power to declare war to an external body that does not represent American taxpayers.

The move also contravenes settled and per-sistent public views about war-making. Thereis no question that this innovation should beresisted. The question is how it might be effec-tively rejected.

History suggests the courts are unlikely tointervene in the war in Libya or future limitedwars. They have not done so with regard to thewar powers clause in Article I. Claims that theUN legitimates limited U.S. wars are not obvi-ously justiciable. In any case, such limited warswill be treated as a political question to be de-

cided by the other branches. Is there hope thatCongress might act?Congress provides representation by con-

trolling spending on wars. By defunding a war, Congress essentially exits the policy.Should that happen, weak internationalismis rendered irrelevant; the UN Security Coun-cil could authorize a war that a U.S. presidentcould not make. What about the alternative?If Congress does not defund a war, does thatconstitute authorization and hence, repre-sentation? In limited wars, Congress has of-ten refused to defund the military for fear of harming American troops (or perhaps, for fearof appearing to be against the welfare of thetroops). By initiating hostilities, a presidentcan thus define a war in a way that makes de-funding unlikely. In this situation, Congressoffers a view on the welfare of American sol-diers but not on the war in which they are en-gaged. In other cases (e.g., Libya), the Househas refused both to defund (or partially de-fund) the war and to authorize it. In this case,Congress chose neither to exit nor to enter thewar. It decided to not decide. In cases wherethe public is ambivalent, such nondecisionsmay represent public opinion. In cases wherethe war is either supported or opposed by majorities, such nondecisions would appear tobe failures of representation. Congressionalambivalence also contravenes the longstand-ing majoritarian preference for congressional


21/32

21

Congress canraise the costs ofpolicy by shapinand mobilizingpublic opinionagainst a war.

authorization of wars, limited or otherwise. By not deciding, Congress is ignoring the publics views about proper procedure if not about thewisdom of a war.

But political representation has other fac-

ets. It has given voice to public dissatisfactionabout wars proper and limited wars. Con-gress has historically been actively engagedin debates over the proper conduct of majormilitary initiatives. It has proposed, publicly debated, and voted on various legislativeinitiatives to authorize or curtail the use of force. Congress has also held hearings aboutthe conduct of limited and proper wars. 215 Many believe that such legislative actionshave little effect on the president. Yet such ac-tions can affect the cost-benefit calculations

of the president in pursuing or failing to pur-sue a limited war. Congress can raise the costsof a policy by shaping and mobilizing publicopinion against a war, thereby increasing thecost in political capital a president must pay to sustain a policy. Congressional actions alsosignal disunity (or unity) to foreign actors,who in turn act on their expectations, thereby raising the costs of a limited war. Congres-sional actions also affect presidential expec-tations about how the conduct of a war willbe received in the legislature; Congress canthus influence presidential policies withoutdirectly overturning them. 216 Systematic evi-dence indicates that since 1945 Congress hasbeen able to influence presidential policiesthrough these means. 217 Although short of constitutional propriety, congressional voicecan matter in war-making.

How might congressional voice matter inregard to the current and future practice of limited wars? Congress can constrain presi-dents by affecting public opinion and thereby raising the costs for presidential policies.

First, members should frame future Lib-yas properly. The administration will wish toframe such wars as a defense of civilians andan effort to rid the world of a longtime enemy of the United States. They will wish to focus onsubstance rather than procedure. This fram-ing is likely to renew the debate between con-stitutionalists and presidentialists. This way of

looking at the war tends to divide Americansin general and critics of the administration inparticular. Some of both groups are inclined toa presidentialist position and thus inclined tosupport the administration formally though

opposing them on the merits. Yet, another framing of such wars is possi-ble. As we have seen, in Libya, the administra-tion has adopted both presidentialist and weakinternationalist positions regarding the legiti-mation of the use of force. Critics could raisequestions not only of constitutional propriety but also of representation and taxation, issuesthat go to the heart of American identity. Thisframing of the issue would divide the war be-tween internationalists and constitutionalists.That division would inform public debate by

posing clearly an important question: Should American wars be authorized by internationalorganizations rather than Congress? A demo-cratic and conscious choice would preemptpresidential practices that undermine repre-sentation in the United States.

Congress may also affect public opinionin other ways. Members should publicize thenumerous survey findings that indicate thepublic strongly prefers the constitutional per-spective on the war powers (i.e., congressionalauthorization of war). This recommendationassumes, of course, that Congress wishes touphold its constitutional obligations in regardto war.

Congress should also represent the pub-lics doubts about the value of limited wars. Aswe have seen, the public is willing to pay littlefor success in limited wars; yet the expectedor actual costs are often obscure. In regionswhere the United States might wage limitedwar, Congress should also examine the as-sumption that such conflicts could be foughtwithout U.S. casualties. Congressional hear-ings, for example, could ask military leadersand experts about expected casualties. Mem-bers could also highlight the costs of suchwars even when no deaths are expected. Evena presidentialist president who is consider-ing declaring a limited war might be forced totake account of a public with better informa-tion about the expected costs of his actions.


22/32

22

Congress shoulddebate whether

to continuethe national

obligationundertaken

by endorsingat the UN a

responsibility to protect

foreign nationalsfrom their

governments.

Congress can foster a better informed public.Congress should also concern itself with the

goals, and not just the means, of limited wars. At least Congress should debate whether to con-tinue the national obligation undertaken by en-

dorsing at the UN a responsibility to protectforeign nationals from their governments. Sucha debate could increase public knowledge aboutsuch obligations on the way toward an informedpublic judgment about their value. A joint reso-lution that rescinds American affirmation of the2005 document or perhaps, just section 139 of it, would deprive future presidents of a reasonto intervene to help foreign nationals, thereby pushing the nation off the path that runs frompresidentialism to strong internationalism re-garding war. Such a resolution might not bind

legally, but if supported by the public, it wouldincrease the costs of limited wars authorized by the United Nations alone.

Finally, Congress should enact a resolutiondenying that limited wars may be legitimatedby international institutions. If it does not doso, a future Office of Legal Counsel could wellconclude that Congress did nothing in 2011to push back on President Obamas claim thata limited war could be legitimated by the Unit-ed Nations Security Council. In the practice of limited wars, congressional silence is taken tobe consent, however improbably.

ConclusionThe practice of limited war in the years

after the Cold War does not serve the nationwell. Contrary to the Constitution, such warsare declared without congressional approval.The president begins such wars and yet is con-strained politically by a strict need to avoid ca-sualties; implicitly these wars are worth fight-ing if they are expected to be (and turn out tobe) costless with regard to American deaths incombat. In war as in life, such undertakingsmay turn out to be worth their marginal cost,that is, nothing. If combat deaths are avoided,however, presidents may avoid responsibility for contravening public opinion about a limit-ed war. Respecting the congressional power to

authorize limited wars would improve the re-publican or representative character of Ameri-can government.

Congress has not distinguished itself regard-ing these limits to wars. Pushed to the side, Con-

gress is often divided and incapable or unwillingto take up its constitutional responsibilities. Its in- vestigations and criticisms can affect the conductof a limited war but not its inception. The publicgenerally becomes less supportive of limited warsover time, and majorities often doubt that suchconflicts ar

Documents

Congress Surrenders the War Powers: Libya, the United Nations, and the Constitution, Cato Policy Analysis No. 687