Jack Goldsmith and Matthew Waxman:
The U.S. Constitution allocates to Congress the power to “declare War” but designatesthe President as “Commander in Chief” of the U.S. armed forces. Dating back at least to Jefferson, presidents have interpreted these provisions to permit deployment of U.S. military force abroad without congressional authorization in many situations short of declared war. The constitutional boundaries of the president’s unilateral power to use military force abroad have always been contested, especially since the United States became a global superpower after World War II.
Neither the Supreme Court nor lower federal courts have addressed the constitutionality of this presidential practice in any detail. The judiciary’s reluctance to weigh in has left the issue largely to the political branches to work out. Congress has usually been quiet, and it has not staked out a clear or consistent constitutional position.
By contrast, presidents of both parties, and their lawyers, have justified presidential war unilateralism in an ever-increasing array of circumstances. The lawyers tend to treat these precedents, and the legal opinions that support them, as sources of constitutional law that in the aggregate become an important element of justification for future presidential uses of force. The precedents reflected in past uses of force also become important points of reference for public debates in Congress and by the U.S. people.
The most extreme historical example of U.S. presidential unilateralism was the Korean War. President Harry S. Truman, without congressional authorization, sent U.S. troops to defend South Korea in a war that would last more than three years and cost the lives of over 33,000 U.S. troops. In most largescale military conflicts since the Korean War—including the Vietnam War; the two Iraq wars; and the ongoing war against the Taliban, al-Qaeda, and its associates—presidents sought and received congressional authorization.
Many smaller-scale military deployments in the post-Korea era, however, were initiated without congressional authorization. This was true, for example, of President Clinton’s military operations in the Balkans, George H.W. Bush’s intervention in Somalia and invasion of Panama, and Reagan’s strikes against Libya and interventions in Grenada and Lebanon. The most significant of these engagements was the Clinton administration’s eleven-week bombing campaign in Kosovo in 1999. Many commentators at the time argued that the initiation of unilateral war of such intensity was unconstitutional. The Clinton administration never offered a public legal justification for the constitutionality of its initial intervention, but did claim that Congress later implicitly authorized it by passing an appropriation to fund it.
Candidate Barack Obama pledged that he would not engage in unauthorized military actions, like Kosovo, where U.S. self-defense was not an issue.“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” he emphatically told then-Boston Globe reporter Charlie Savage in 2007.
President Obama did not follow through on this pledge. In March 2011, he ordered the U.S. military to join the intervention to protect civilians from massacre in Libya that the UN Security Council (UNSC) authorized but Congress did not. Obama’s Justice Department issued an important legal opinion that rationalized past precedents on the way to blessing the unilateral executive action.
The opinion said that the President had the constitutional power to use unilateral force in order to protect two national interests—“preserving regional stability” in North Africa and supporting the UNSC’s “credibility and effectiveness.” It acknowledged only one “possible” constitutional limit on this power, probably with the 1950s Korea precedent in mind. If the President’s planned military action involved “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period,” it reasoned, the Constitution might require the president to seek approval from Congress. But it concluded that no such authorization was required for the Libya campaign, which involved no ground troops and which anticipated uses of force deemed to be limited in their “nature, scope, and duration.” The Obama legal team may have been distancing itself from the “large-footprint” Korea precedent, but it carved out constitutional space for small-footprint war-making.
The Libya operation—which was not based on a direct threat to U.S. national security, lasted seven months, cost over a billion dollars, and involved thousands of air sorties including a substantial percentage of targeting sorties—now stands as the baseline for permissible unilateral force from the air. In justifying that operation, Obama’s lawyers relied heavily on the fact that it had the imprimatur of the UNSC. That factor was absent in 2013, however, when President Obama claimed unilateral authority to conduct strikes against the Syrian government, based on the U.S. interest in preserving regional stability and enforcing the international prohibition on the use of chemical weapons. The President and his lawyers insisted on this unilateral authority even as they unsuccessfully sought Congress’s authorization and then cancelled the mission. The President likely relied on a similar rationale when he unilaterally launched airstrikes in Iraq in the summer of 2014 in order, as he told Congress, “to help forces in Iraq as they fight to break the siege of Mount Sinjar and protect the civilians trapped there.”
These precedents together clarify the foundation for unilateral light-footprint warfare. President Obama has established that the president can deploy significant unilateral military force whenever s/he perceives a threat to regional stability and human rights or other established international norms, even when the threat poses no direct danger to the United States. If these oft-satisfied circumstances are present, the Libya opinion and practice establish that a president can use force for many months as long as the force is no more intensive in “nature and scope” than the very intensive seven-month aerial bombardment in Libya. Under this rationale, air strikes, especially by drone, or powerful cyber attacks would often lack the “nature and scope” that require congressional approval. The Obama precedents also allow a future president to deploy Special Operations forces unilaterally in many discrete mission contexts. In these and other ways, President Obama has clarified and strengthened the constitutional space for light-footprint warfare.
…All of President Obama’s legal maneuvers and arguments in support of his war powers are based on executive branch interpretations. They are thus but one branch’s view of the Constitution, the WPR, and the AUMF, and they remain highly contested. Nonetheless, the interpretations will be influential in guiding future presidents, both because executive branch lawyers treat the precedents as legal authorities in future wars and because the precedents are unlikely to be scrutinized in court.
Beyond the legalisms, the precedents established by Obama’s uses of force will prove influential more broadly in public debates, where politicians and commentators invariably scramble for past examples to measure the legitimacy of a new presidential use of force. If a new military deployment (or something like it) has been done before, it is easier to justify again. The precedents Obama has set may be unusually influential for two reasons: Obama’s claims of legal power have been advanced by a president who is a constitutional lawyer (and by executive branch attorneys who did not bring to office a reputation for hardline executive supremacy); and many of the legal justifications have been elaborated in public testimony, opinions, and speeches. It is hard to speculate about the precise contexts in which future presidents may deploy these precedents, since tomorrow’s threats are unknowable. But President Obama’s actions have made it easier, legally and politically, to claim constitutional justification for unilateral uses of light-footprint force against future threats, to minimize the impact of the WPR on these uses of force, and to justify new unilateral extensions of the 2001 AUMF.
While almost all of the Obama legal innovations related to war have taken place without specific congressional authorization, none of the innovations comes as news to Congress. In some instances, such as the extension of the AUMF to include the Islamic State, Congress has gone along via appropriations, even while failing to approve the actions explicitly. And more members of Congress than not have supported the President’s actions—for example in the air war in Libya, and in the fight against the Islamic State—in informal statements. But Congress as an institution has declined the opportunity to weigh in expressly on the President’s interpretation of his war authorities. Most notably, it failed to pass (or reject) a force authorization specific to the Islamic State, or to respond to the Obama administration’s efforts to explain away WPR limits in Libya.
Both political branches are responsible for this state of affairs, which courts will remain reluctant to fix. President Obama, motivated by opposing impulses on war powers, has shown little appetite for the hard work needed to secure congressional authorization for light-footprint interventions. Meanwhile, Congress is mired in partisan feuding and has shown little institutional capacity or interest in playing a significant role in authorizing them. Deadlock over a new AUMF for the Islamic State is unlikely to be broken soon, for example, because the President’s legal needs are served by a stretched 2001 AUMF, and many congressional members see possible political downside but little upside to committing themselves in a vote on an express authorization.
The United States has a long history of presidential military initiative borne of responsibility and opportunity, and congressional acquiescence borne of irresponsibility and collective action hurdles. This historical pattern of executive unilateralism has not meant that the president is unchecked. It has simply meant that the checks were political, not legal, and were imposed by the threat of congressional retaliation if the president’s initiatives go terribly wrong, and by the U.S. public through electoral accountability.
It may be that Obama’s light-footprint warfare falls within this tradition. Neither Congress nor the public opposes Obama’s use of light-footprint military tools —especially against terrorist threats—that don’t cost the United States heavily in blood or treasure compared to President Bush’s military adventures. The one time President Obama considered a military intervention that the U.S. public did not appear to support —the threatened bombing of Syria in 2013—he backed down. In many respects, President Obama has been less hawkish than the Republicans who have controlled both Houses of Congress since 2014. Especially in an era marked by fierce partisan gridlock in other contexts, the formalities of overt congressional approval might matter less than the reality of broad congressional and public support for the president’s military actions.
A more pessimistic view, however, would acknowledge light-footprint warfare’s costs to U.S. democracy and its risks to a politically sustainable foreign policy over the long run. The United States wields military force today in ways starkly different from 2001. The conflict that began fifteen years ago has been characterized by ever-morphing enemies, an uncertain though expanding geographical scope, and an indefinite duration unlike any war in previous eras in U.S. history. The United States has stumbled into its current military posture with stunted public debate and intermittent congressional attention. This is no accident, since light-footprint warfare takes place largely in secret, largely from a distance, and largely without threat to U.S. personnel. President Obama’s legal approach to war powers emphasizes the very factors that invite low domestic scrutiny to support unilateral presidential action. It reflects the idea that the smaller the footprint and the lower the risk of substantial U.S. casualties, the less the imperative to obtain overt approval by Congress or the U.S. people.
No more should american military personel be forced to serve the United Nations as so called Peace Keepers no more should they be forced to wear the UN Blue and serve under forgiegn commanders bring them home to guard our natiion’s borders and protect us from enemy invaders
Obama worries more about personal political liability than protecting lives or national security. He inexplicably stalled 16 hours to authorize the bin Laden raid and could not be bothered to make a decision on a hostage rescue mission for 24 hours… missing an opportunity to rescue hostages.
No, Obama doesn’t want to follow the parliamentary process of getting approvals; only his political fortunes are considered.