The Department of Justice has completed its legal opinion justifying President Obama’s power to launch his
war kinetic military action in Libya without Congressional approval. The opinion is based on two findings (page 10): First, the war serves “sufficiently important national interests” (as if that could ever be found not to be the case). Second, the war isn’t really a “war”.
No really, that’s exactly their argument:
Turning to the second element of the analysis, we do not believe that anticipated United States operations in Libya amounted to a “war” in the constitutional sense necessitating congressional approval under the Declaration of War Clause. This inquiry, as noted, is highly fact-specific and turns on no single factor. [Scofflaw: yeah, I’ll bet!] See Proposed Bosnia Deployment, 19 Op. O.L.C. at 334 (reaching conclusion based on specific “circumstances”); Haiti Deployment, 18 Op. O.L.C. at 178 (same). Here, considering all the relevant circumstances, we believe applicable historical precedents demonstrate that the limited military operations the President anticipated directing were not a “war” for constitutional purposes.
You want to know why the Obama administration is refusing to call this a war? There’s your answer right there. If they called it a war, their own analysis says it would be illegal.
POSTSCRIPT: My personal opinion is that the president has plenary authority as commander-in-chief to carry out brief military actions, and he doesn’t need to make up delicate, bogus, and insulting legal tests. However, he was unwise to use that authority in a situation such as this, where the
war kinetic military action is unlikely to be over within 60 days. He was particularly unwise, given his emphatic earlier statements against presidential war-making power. He should have sought Congressional approval, and he would have received it easily.
(Via Beltway Confidential.)