The Obama Justice Department's April Fool's Case for War

As Conn Carroll noted here Friday, the Obama Justice Department’s Office of Legal Counsel has released its formal opinion [.pdf] on the President’s “Authority to Use Force in Libya.” It came out Thursday the 7th, but as a friend of mine noted, the formal date on the document is April Fool’s Day.

And maybe that’s appropriate. There are more problems with OLC’s constitutional case for war than I can treat in a single blogpost, but I’ll treat one of them here (more to come later).

The memo notes that one of the key questions is “whether the military operations that the President anticipated ordering would be sufficiently extensive in 'nature, scope, and duration' to constitute a 'war' requiring prior specific congressional approval under the Declaration of War Clause.”

Note first of all that there’s nothing in the Constitution to suggest that congressional authorization is unnecessary if the president thinks the operations he’s ordered will beshort and easy. From Truman's "limited police action" in Korea onward, we've heard that before, and the president's self-serving assertion that the action in question won't take very long is constitutionally irrelevant.

But OLC’s Clintonian insistence that “it depends on what the definition of ‘war’ is” helps explain the Obama team’s perverse refusal to admit that we’re engaged in a war against the Gadhaffi regime. (They prefer the term ”kinetic military action.”)

Defense Secretary Robert Gates’s recent testimony before the House Armed Services Committee inadvertently revealed how phony this argument is. (Hat tip to my colleagueJustin Logan). Rep. Randy Forbes (R-VA) boxed the SecDef in on this issue with some skillful cross-examination.

Forbes asked Gates: if another nation launched a Tomahawk missile against New York City, “would that be considered an act of war against the United States of America?”

Gates: “Probably so.”

Forbes continued: wouldn’t the same reasoning apply if we launched Tomahawks at another country. Gates demurred, complaining that the congressman was getting into the area of constitutional law, where, Gates said, he’s “no expert.”

Forbes: “Mr. Secretary, you’re the secretary of defense. You ought to be an expert on what’s an act of war or not. If it’s an act of war to launch a Tomahawk missile at New York City, would it not also be an act of war to launch that by us on another nation?”

"Presumably," Gates grumbled.

Make no mistake, we're at war in Libya, by the administration's own admission. And, as Rep. Forbes pointed out, that's a serious violation of the rule of law.