Libya and Our Constitution


There was a time, before the debt limit debate, when the constitutionality of the no-fly zone over Libya was hotly debated. A vote to prohibit funding for the engagment – sorry, kinectic military action! – nearly succeeded in the House. And then the war faded from the news cycle. And then the rebels took Tripoli. There was a little bit of liberal gloating about this yesterday, which Glenn Greenwald juliennes nicely here.

What comments like this one are designed to accomplish is to exploit and manipulate the emotions surrounding Gaddafi’s fall to shame and demonize war critics and dare them to question the War President now in light of his glorious triumph. Of course, ThinkProgress could have just as rationally directed its question to President Obama’s own Attorney General, Eric Holder, and his Office of Legal Counsel Chief, Caroline Krass, and his DOD General Counsel, Jeh Johnsen, all of whom argued that the war was illegal on the same grounds as Boehner did.  Or they could have directed their comment to the numerous House Democrats who vehemently protested the war’s illegality, and to the 60% of House Democrats who voted to de-fund it.

I’m seeing very little liberal chest-thumping about this intervention, actually. Most Americans quickly turned on it; liberals and Democrats stuck with the president, but the rationale looked to be pure partisanship. One reason for the muddle is that our commitment is clearly not over, and we have no idea how long we’ll be participating in NATO’s action. A secondary reason: the only way to decisively end the commitment would be to defund it. Congress has waffled about doing that. The Obama administration has argued – Jack Goldsmith backs up the case here – that the War Powers Resolution does not apply to the NFZ, so we’re going to stay committed until we aren’t. But the administration hasn’t made the aggressive case for intervention that, say, the Wall Street Journal op-ed page has, or John McCain has. That’s going to become necessarily if any effort on the ground – never fully ruled out – becomes necessary.

We could luck out, and this could be the extent of our work in Libya. If that’s the case, we dodged the Constitution and got off easy.