Critics are starting to swarm around the Obama administration’s increasingly unintuitive claim – in the sixth day of what the New York Times now describes as “ferocious” air strikes on ground forces, tanks, and artillery – that the intervention in Libya is not “war.” No doubt political considerations inform this awkward rhetorical stance. But I think legal considerations do too. As I suggested a few days ago, it appears that the administration’s “not war” legal justification is grounded in two opinions by then-OLC head Walter Dellinger, oneconcerning the planned 1994 troop deployment in Haiti, and the other the 1995 troop deployment to help NATO ensure compliance with the Bosnia peace agreement. In those opinions Dellinger attempted to justify the relatively low-key interventions without embracing some of the broader theories of presidential war unilateralism going back to the Korean War. Dellinger essentially argued that because those interventions were consensual, limited in scope and duration, and not likely to lead to casualties, they did not amount to “War” within the meaning of the Declare War clause, and thus did not require congressional authorization. Continue reading Jack Goldsmith at Lawfare…
(photo credit: Charles McCain)
