June 1, 2011
Obama’s Illegal War—A Commentary by Bruce Ackerman ’67 and Oona Hathaway ’97
The following commentary was published in Foreign Policy on June 1, 2011.
Obama’s Illegal War
By Bruce Ackerman ’67 and Oona Hathaway ’97
The bombing campaign in Libya continues into its 72nd day without the consent of the U.S. Congress -- breaking the 60-day limit for unilateral presidential war-making. With the Justice Department providing no public explanation for this breach, lawmakers are beginning to take matters into their own hands.
This week, the House of Representatives will be voting on a resolution insisting that President Barack Obama bring the Libya mission to a speedy close. The Senate, for its part, will soon take up a bipartisan measure supporting the war. Meanwhile, with no U.S. domestic debate, NATO has announced it will continue its operations in Libya for another 90 days.
We are at a constitutional crossroads, similar to the one the United States confronted in 1973 when Congress enacted the War Powers Resolution, which set the 60-day limit, over Richard Nixon's veto. The Constitution famously grants Congress the power to declare war, but Nixon continued to fight in Vietnam for three years after Congress had withdrawn the Gulf of Tonkin resolution authorizing the conflict.
Faced with this plain constitutional violation, Congress acted decisively to restore the system of checks and balances. For centuries, the president and Congress had wrangled over the kind of actions that counted as a "war" for constitutional purposes, with presidents exploiting legal ambiguities to cut Congress out of key decisions. The act broke this impasse by imposing a time limit on all "hostilities" -- a functional term meant to eliminate legalistic evasions the White House had developed over what counted as "war." Henceforward, the 60-day deadline would apply whenever the president began "hostilities," and if he failed to gain congressional approval, the act gave him 30 days to terminate the military operation.
This clear and simple 60/30-day setup is especially important at a time when other restraints on presidential war-making have atrophied. During the era of the Founding Fathers, Congress could back up its constitutional authority with its power of the purse. For example, when President George Washington responded to military defeats on the frontier by escalating the conflict, he got Congress to give him $532,449.76 and 2/3 cents for his war -- note the 2/3 cents!
It's a lot harder to do so now. The Libya campaign has already cost three-quarters of a billion dollars, and yet Obama hasn't had to ask Congress for a dime. He has funded the war entirely out of the general $600 billion appropriated to the Defense Department.
This leaves the time limit as the only effective mechanism for preserving the Founders' commitment to congressional control. Unlike with many other areas of law, the courts can't be counted on to translate abstract principles into concrete rules. So far as war-making is concerned, they have left it to the political branches to work the matter out -- which is precisely the purpose of the War Powers Resolution.
The Justice Department explicitly endorsed the constitutionality of the time-limit provisions in 1980, and presidents have abided by them ever since. When Ronald Reagan's multinational peacekeeping operation in Lebanon broke out into clear "hostilities," Congress passed -- and Reagan signed -- the first legislation expressly invoking the War Powers Resolution authorizing U.S. troops to remain for 18 months. Similarly, Bill Clinton gained a special appropriation from Congress within the first 60 days of his bombing campaign in Kosovo. And George W. Bush gained explicit congressional consent before launching the Afghanistan and Iraq wars -- as did his father at the time of the first Gulf War.
Obama's action is unprecedented. After notifying Congress that he had begun "hostilities," the president did absolutely nothing to gain congressional consent until Friday, May 20 -- just hours before the 60-day clock ran out. He then sent a letter to the House and Senate asking for their support, leaving it to Jay Carney, his press secretary, to explain that he "believes that he has acted … consistent with the War Powers Resolution … and that's all I'm going to say about it."
But actions speak louder than press secretaries. Even though the time limit set by the War Powers Resolution has expired, Secretary of State Hillary Clinton recently admitted that "the United States continues to fly 25 percent of all sorties. We continue to provide the majority of intelligence, surveillance, and reconnaissance assets. We continue to support all of our allies in their efforts." The United States continues, in short, to be involved in precisely the kind of "hostilities" that the War Powers Resolution is meant to control.
The president has the constitutional responsibility to "take care that the Laws" -- all the laws -- "be faithfully executed." The fate of Libya is important, but that is no excuse for ignoring the U.S. Constitution and the rule of law. Obama should belatedly heed the War Powers Resolution and press Congress to move quickly so that he can legalize the war within the 30-day deadline for terminating military action established by the act. This is the only way to keep faith with the Founders' commitment to checks and balances and to protect Americans against future presidential war-making without broad popular support.
Bruce Ackerman is a professor of law and political science and Oona Hathaway is a professor of international law at Yale University.