Power Wars Symposium: What Role Should Law Play in Areas of Vital National and International Affairs?

Editor’s Note: This is the latest entry in a symposium Just Security is hosting in conjunction with the recent release of Power Wars: Inside Obama’s Post-9/11 Presidency by Charlie Savage. The series includes posts by Oona Hathaway, Marty Lederman (here and here), Laura DonohueJennifer Daskal, and Jennifer Daskal & Steve Vladeck, with more to come.

Power Wars, Charlie Savage’s new book, provides a comprehensive collection of primary-source materials for reflecting on the most profound questions about the role law does and should play in areas, such as national security and the use of force internationally, where policymakers perceive some of the most compelling national and international interests to be at stake. Former Obama and Bush administration lawyers will immediately rush to debate, as they have already, whether the story Power Wars tells is one of essential legal continuity or change across administrations.

But beyond these internecine  battles over legacy, Savage’s book provides an opportunity to consider more enduring, challenging questions about what role law ought to play during times when vital national and international issues are at stake. Much of the discussion over Savage’s often arresting chronicles of specific decisions will proceed on the assumption that law should trump all other factors in decision-making in these areas, such as considerations of policy, diplomacy, or international consequences. Commentators spend much of their effort debating, as does Savage’s book, whether the legal interpretations that justify particular actions — such as the use of force in Libya or the use of force against ISIS — are legally convincing interpretations. But I want to step outside these internal debates to raise two broader questions: First, should we view compliance with law as a trump — as the value that should take lexical priority over all other factors in decision-making — in the domain of issues at the center of Power Wars? Second, as a related matter, when law does appear to function as a trump, in the limited contexts in which Power Wars does suggest law did function in that way, should we actually celebrate that triumph of law — or were the consequences of these legal vetoes so troubling that they ought to lead us to re-consider whether law ought to have been a trump in these settings?

The first question is provoked by the Libya operation. The second is raised by the Syria episode. Because this is a short blog post, not a full review of Savage’s rich book, I will focus only on the first question here.

Lawyers, both government and academic, tend in this day and age to take for granted — and vigorously defend — the view that legal compliance is a non-negotiable value, not merely one factor in a complicated decision-making calculus in areas of vital national interest. But consider the air war in Libya that the Obama administration conducted with NATO allies in 2011. With US Predator missile strikes proceeding at the rate of about one a day (page 640), along with the US providing critical surveillance and refueling support for allied-bombing strikes, the operation began to bump up against the 60-day wall of the War Powers Resolution (WPR). Let us assume this operation did constitute “hostilities” within the meaning of the WPR, which is what Savage reports was the “apparent consensus” of most of the interagency lawyers in the Obama administration (page 642). Congress had taken no action to approve the operation — but it had also taken no action to reject it. But under the WPR, the failure of Congress to act meant that the United States should have pulled the plug on its involvement in these “hostilities” after 60 days.

Yet no sensible President who had made the initial decision that the Libya operation was the right thing to do would have done that (at least absent enormous public and political resistance to continuing the bombing). As Savage reports, without the continued use of the unique weapons systems the United States had available, the risk that NATO aircraft would be shot down by pro-Gadhafi forces would have gone up; NATO was also using the Predators to monitor chemical weapons depots and were being relied upon for immediate strikes should anyone seek access to those depots (page 644). But it’s not just the effectiveness of the specific international effort on Libya that would have been compromised. Numerous countries had invested in their support for the operation, some with military forces, others in other ways; the Arab League had requested military action, which also had the backing of a United Nations Security Council resolution. If the United States suddenly withdrew from “hostilities” on day 60, our ability to put together operations like this in the future would surely have been deeply compromised, as any President would recognize and take into account. I take no position here on whether it was wise from the start to undertake the Libya operation, but having undertaken it, it is inconceivable that President Obama, or any President in the same position, would have ended the “hostilities” based on Congress’ inaction.

Indeed, as even the dovish New York Times editorial board put it in describing the essential role of the United States in the Libya war: “If Washington were to cut off its support now, the NATO campaign would unravel. The cost to relations with Europe and the unity of the military alliance would be enormous — likely felt all the way to Afghanistan.” The Times editorial page wrote this during the operation, of course, in insisting that President Obama “cannot evade” his legal responsibility to get congressional approval: “Obama doesn’t have a choice”; to continue the battle, he was legally required to get congressional approval. But when Congress did not act, the editorial board of the Times did not (as far as I can tell) follow through and now insist that President Obama “doesn’t have a choice” and had to end the operation — even though on the Times own stated position, his failure to get congressional approval meant that he was now violating the law — that is, conducting illegal military operations. Similarly, while many lawyers and legal academics argued vehemently that the Libya war absolutely constituted “hostilities” and that President Obama would be violating the WPR without congressional approval, once that approval was not forthcoming, there was little follow up demanding that Obama stop the operation (a possible exception is here) — even though, on their own account, Obama was now fighting an illegal war.

This silence is accounted for, I submit, by a widespread, tacit acceptance even among many of the strongest defenders of “the rule of law” that legal compliance with the WPR was not the highest value in this context. The legal requirements of the WPR should not have been permitted to trump the range of other important policy considerations in continuing to successful completion the Libya operation. To defend the substantive positions that might underlie this tacit acceptance, I would emphasize two factors.

First, the WPR, while an important effort on Congress’ part to reclaim a role for itself over uses of military force, is constructed in an extremely inept way, as a means of making policy over such momentous issues. By design, the WPR makes Congress’s silence — its failure to act to take any position one way or the other about matters like the Libya operation — tantamount to a decision by Congress to prohibit the United States from continue to participate in “hostilities” that the United States has initiated. Thus, Congress’s failure to act has all the consequences, as a practical matter, of an affirmative decision by Congress to cut off the Libya operation, though without Congress actually making such a decision or having to take direct responsibility, through the act of voting, for such a decision and its ensuing consequences. This policymaking-by-silence should certainly give us pause as a sound structure of decision-making on matters of such significance.

To a “legal absolutist,” that should not matter: A law is a law is a law. But if we think law should be one factor, though not an absolute trump, in a President’s decision-making calculus on these exceptional matters concerning international relations and use of force, the fact that this particular law creates a de facto policy without Congress actually deciding that should be our policy might legitimately play a  role in that calculus.

The second factor in not treating the WPR as a legal trump on Libya is the set of considerations described above. For the US to have pulled the rug out from under our NATO allies and the Libya operation would have been deeply damaging to the US role in the world, as well as to the Libya operation itself. So assuming “hostilities” were indeed involved, given these kind of policy consequences and the awkward, backwards way the WPR makes law, should the President have ended the operation because complying with the law ought to take priority over all other considerations? Savage’s account strongly suggests that President Obama had made the decision he was going to continue the bombing in Libya, even at the moment at which the consensus among his legal advisors was that doing so would violate the WPR. My challenge is, would he have been wrong to do so?

The legal debate about whether the Libya operation amounted to “hostilities” seems to me, in other words, to miss the deeper and more challenging issue that’s really involved. In being provoked by Savage’s book to ask whether legal compliance should always be the highest value in these exceptional contexts, I am not belittling the law by asserting that Presidents do whatever they want. I am suggesting instead, as a normative matter, that perhaps in some contexts of high national and international stakes, including use of force, law should be a factor taken into account, but not an absolute trump. And it seems to me that is the question we ought to be devoting far more attention to, concerning Libya, than the internal legal question of whether the operation amounted in the legal sense to “hostilities.” 

About the Author(s)

Richard Pildes

Sudler Family Professor of Constitutional Law at New York University School of Law