Showing posts with label Libya. Show all posts
Showing posts with label Libya. Show all posts

Saturday, January 30, 2016

Opening a New Front Against ISIS in Libya

The Pentagon is ramping up intelligence-gathering in Libya as the Obama administration draws up plans to open a third front in the war against the Islamic State. This significant escalation is being planned without a meaningful debate in Congress about the merits and risks of a military campaign that is expected to include airstrikes and raids by elite American troops.
That is deeply troubling. A new military intervention in Libya would represent a significant progression of a war that could easily spread to other countries on the continent. It is being planned as the American military burrows more deeply into battlegrounds in Syria and Iraq, where American ground troops are being asked to play an increasingly hands-on role in the fight.
Gen. Joseph Dunford Jr., the chairman of the Joint Chiefs of Staff, told reporters on Friday that military officials were “looking to take decisive military action” against the Islamic State, or ISIS, in Libya, where Western officials estimate the terrorist group has roughly 3,000 fighters.
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Administration officials say the campaign in Libya could begin in a matter of weeks. They anticipate it would be conducted with the help of a handful of European allies, including Britain, France and Italy. The planning is unfolding amid political chaos in Libya, which continues to reel from the aftermath of the 2011 civil war that ended with the killing of the country’s longtime dictator, Col. Muammar el-Qaddafi. In recent months the United Nations has struggled to persuade two groups of Libyan officials who claim to be the country’s rightful leaders to band together. On Monday, the parliament that is recognized by the international community rejected a unity government proposal brokered by the United Nations.
The political strife and infighting among rival militias created an opening for the Islamic State in Libya in 2014. The extremist group now controls the coastal city of Surt, which lies between the country’s two largest cities, Tripoli and Benghazi. General Dunford told reporters that striking the cells of Islamic State fighters in Libya would “put a firewall” between that front and sympathizers of the group elsewhere in North Africa and sub-Saharan Africa.
That is a reasonable goal. But military officials have yet to make a persuasive case that it is achievable. Even if the Pentagon and its allies were to manage to strike Islamic State targets successfully, it remains uncertain that they would have a reliable ground force to hold the terrain. There’s good reason to believe that airstrikes would create the temptation to deploy ground troops to gather intelligence and provide technical support to rebel forces as they have in Iraq and Syria.
On the same day General Dunford discussed the plans for Libya, Secretary of Defense Ashton Carter said the Pentagon was redoubling efforts to assist local forces in Iraq and Syria. “We’re looking for opportunities to do more, and there will be boots on the ground — I want to be clear about that — but it’s a strategic question, whether you are enabling local forces to take and hold, rather than trying to substitute for them,” he told CNBC in an interview.
There seems to be little interest in Congress to authorize the campaign against the Islamic State, which is predicated, preposterously, on the 2001 law passed to take action against the culprits of the Sept. 11 attacks. The prospect of a new front in the war should spur lawmakers to revisit the issue.
The White House has said it would be nice, but not necessary, for Congress to pass a new authorization for the use of military force. That stance has allowed Congress — which has primary responsibility under the Constitution to declare war — to sidestep an important war vote.

Wednesday, June 29, 2011

NATO’s Libya campaign drags on

By Michael Birnbaum and Ernesto Londono, Published: June 26

NAPLES — As NATO bombs began to rain on Libya in March, President Obama and other Western leaders assured their war-weary publics that the campaign to protect civilians from Moammar Gaddafi’s crackdown would be over within weeks.

Now the coalition’s springtime incursion has stretched to summer, and Gaddafi’s resilience has startled the leaders who committed to the operation. Calls are growing to end it even as NATO pleads for more time.

As the campaign enters its fourth month, NATO officials insist that it is succeeding and that Gaddafi will become the Arab Spring’s third casualty. But that will happen, they say, only in a slow and steady advance on the capital as his troops run out of supplies, not in a flash of pyrotechnics that puts him out of power in an instant.

“The noose is tightening around him, and there’s very few places for him to go,” Gen. Charles Bouchard, the Canadian head of the operations, said Saturday in an interview at his Naples headquarters. But, he added, “You don’t stay in power for 41 years and expect that he’s going to leave at the first sign of stresses.”

Indications of a fraying commitment to the mission were evident in a House vote Friday in which an unusual coalition of anti-war Democrats and tea party Republicans joined to reject a measure to authorize U.S. involvement in the Libya operation, even as they declined to strip part of its funding. In Britain, a top commander said last week that if the campaign goes on past September, his forces could crack under the strain. On Wednesday, Italy’s foreign minister called for an immediate end to hostilities.

NATO has flown more than 4,700 strike sorties, pummeling bunkers, depots and vehicles and reducing much of Gaddafi’s army to ruins. It watches his military movements with drones that can remain in the sky for days.

Still, Gaddafi holds on, continuing to cause casualties in the rebel-held city of Misurata, in the mountain towns south of Tripoli and along the front line in the east.

Bouchard said NATO’s extreme caution about civilian deaths — in one case scuttling days of planning because a soccer game was being played next to a target — has slowed the campaign. The upshot, he said, is that there has been only one instance in which NATO thinks it may have caused civilian casualties, and few opportunities for the Libyan government to present evidence of more.

Both sides say that credible allegations of civilian deaths probably are the best weapon Libya can use against NATO. The nervousness was palpable at NATO’s operational headquarters on Friday before major strikes on Brega, a now-depopulated city near the main front line that NATO says government troops have been using as a base.

NATO later said it hit seven command-and-control nodes in the city, along with 28 other targets. Libyan officials said Saturday that the strikes killed 15 civilians, but they did not present evidence to support that number and in the past have exaggerated when saying that civilians were killed in strikes.

Measures that could speed Gaddafi’s departure, such as cutting overland fuel lines to Tripoli, aren’t being carried out because the United Nations mandate does not allow targeting civilian infrastructure, Bouchard said, adding that he is cautious about potentially harming civilians in the process.

One major problem with the campaign has been unrealistic expectations from the outset, analysts said.

“With any use of air power comes this public expectation that airplanes will prove our resolve, that we’ll be able to deter the enemy, that they can’t possibly win and will capitulate,” said Tami Davis Biddle, a military historian at the U.S. Army War College. “But this idea that aerial bombardment equals capitulation is a really flawed equation.”

Rebels have blamed NATO for their inability to make meaningful headway in their advance toward Tripoli, although they also say they are slowly smuggling weapons into the capital to undermine it from within. Rebel leaders based in the east say their grip on the besieged port city of Misurata — the bloodiest and arguably most important front line in the conflict — is fraying. Rebels took control of the city in late April, despite intense shelling and artillery attacks by forces loyal to Gaddafi, but they have been unable to push westward.

Rebel spokesman Mohamed Ali said opposition leaders are mystified by what they perceive as the coalition’s reluctance to more forcefully attack Gaddafi troops on the front lines.

“NATO is a mystery to us,” Ali, who is based in Doha, Qatar, said in an interview via Skype. “This is getting to a stage where it’s getting very, very dangerous.”

NATO officials say they are doing all they can without risking civilian casualties, pointing to Libyan government forces switching tactics since NATO’s operation began. Many have shed their uniforms and are using weapons mounted on the backs of pickup trucks, just like the rebels, officials said. That led NATO to mistakenly target a column of rebel vehicles this month.

In the meantime, poorly trained rebel fighters are taking a beating as government troops lob long-range rockets into Misurata, with NATO unable to stop them, rebels say.

“They could do better,” said Abdul Bassett Swaisi, the commander of a rebel unit of about 150 men outside Misurata. “If the situation continues to be like this, it will take years, not months.”

The debates raging in the West and allied Arab states have made untenable the prospect of deploying ground troops to push out Gaddafi.

Military analysts say that matters a great deal.

“There’s no example of regime change occurring by bombing alone,” said Shashank Joshi, an analyst at Britain’s Royal United Services Institute, a think tank. In Kosovo, he pointed out, where the NATO air campaign was significantly more forceful than it is in Libya, the threat of deploying ground troops was what finally prompted Slobodan Milosevic to surrender.

Although it is difficult to know whether Tripoli residents are being earnest when they speak to Western journalists in the presence of government minders, recent street interviews suggest there is growing anger in the capital about NATO’s campaign.

Abdul Adeem, 44, an electrician who lives near a house leveled after a NATO strike last week, said the bombing campaign has made people rally around Gaddafi.

“All neighbors are afraid,” he said. “They think maybe NATO will do it again tonight.”



Londono reported from Tripoli. Staff writer Karen DeYoung in Washington and special correspondent Portia Walker in Misurata contributed to this report.

Saturday, June 18, 2011

George W. Obama and the OLC

Saturday, June 18, 2011

JB


Charlie Savage writes that President Obama took the unusual step of overruling the head of the Justice Department's Office of Legal Counsel and the top counsel for the Defense Department in order to conclude that the U.S.'s participation in the war in Libya did not amount to "hostilities or "imminent hostilities." This meant that the 60 day clock in the War Powers Resolution did not continue to run. Hence, Obama was able to conclude that he was not in violation of the WPR's 60 day requirement because "hostilities" or "imminent hostilities" had not occurred since the beginning of April.
But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
It is instructive to compare President Obama's actions with those of his predecessor, George W. Bush, who sought legal justification for his decision to engage in waterboarding and other "enhanced interrogation techniques," which constituted torture. Bush wanted above all to be able to deny that he was violating the anti-torture statute and other laws and treaties. So he found a small group of lawyers in the OLC, headed by John Yoo, and asked for their opinions. This short-circuited the usual process through which the OLC collected views from various agencies and then used them to develop legal opinions for the executive branch. That is, Bush (assisted by his Vice-President, Dick Cheney) arranged matters so that decisions about waterboarding and enhanced interrogation techniques would be in the hands of lawyers he knew would tell him yes; the normal process of collating opinions was short-circuited and other lawyers were effectively frozen out.

Obama's practice is different, but it has disturbing similarities. Normally, Obama would have asked the OLC for its opinion, and as noted above, the OLC would have polled legal expertise in various agencies, consulted its precedents, had long discussions, and then come up with a scholarly opinion that is normally binding on the executive branch. Instead, Obama routed around the OLC, asking for opinions from various lawyers, including the White House Counsel and the Attorney-Advisor for the State Department. It is difficult to escape the conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC.

Obama's strategy, like Bush's, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC's function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC's. If one is disturbed by Bush's misuse of the process for vetting legal questions, one should be equally disturbed by Obama's irregular procedures.

Lest I be misunderstood, let me make clear that there is no single way that the Executive Branch has to be organized. The Constitution does not speak to it. George Washington consulted various cabinet members about the constitutionality of the First Bank of the United States, finally settling on the views of his Treasury Secretary, Alexander Hamilton. But this was early in the nation's history, and long before the creation of the Justice Department following the Civil War and the creation of the OLC itself in the twentieth century.

Moreover, the practice of having the OLC serve as the canvasser of legal opinions from various parts of the executive branch, and the custom of treating the OLC's opinions-- reached after ample deliberation--as binding on the executive branch is not constitutionally required. The President may disregard the OLC without violating the Constitution.

However, there are good reasons why these practices and customs were implemented. They were designed to prevent Presidents from treating their lawyers like so many guests at a cocktail party that they can causally survey in order to pick out their friends. These procedures exist because there is almost always a prominent and skillful lawyer in the Administration who will tell the President pretty much what he wants to hear.

The OLC's procedures are designed to prevent precisely this sort of cherry picking. If the President can simply canvas the opinions of enough such lawyers he is not restrained very much by the law. Indeed, it is particularly relevant here that one of the lawyers who supported the President's position on Libya is the White House Counsel. The White House Counsel's office, as it has developed over time, is much closer to the political arm of the President's operations, and much much less likely ever to cross the President. White House Counsels who do not facilitate the President's political goals do not remain long as White House Counsels. Not surprisingly, the White House Counsel's office does not have the same academic or judicious traditions of the OLC. Whether or not one thinks that the OLC is likely to say yes to the President simply because it sits in the Justice Department, the White House Counsel's office is likely to be ten times more flexible.

The fact that Obama is a former professor of constitutional law does not justify his scuttling practices that are designed, over long periods of time, to improve legal deliberations and help ensure that presidents conform to the law. Former professors of constitutional law, like current ones, have been known to disagree among themselves about what the law requires; they have even been known to make mistakes and engage in serious misjudgments.

The fact that Obama may think he is smarter and more learned than George W. Bush also does not justify his practice. The next President, or the one after that, may think themselves smarter than Obama. They will certainly find a group of able lawyers somewhere in their Administration to tell them so. Obama came into office promising to reform the abuses of the Bush Administration and its manipulation of the OLC. The best way to do that is not to create entirely new abuses of one's own.

President Obama Rejected DOJ and DOD Advice, and Sided with Harold Koh, on War Powers Resolution

LawFare
by Jack Goldsmith

Charlie Savage has the amazing story that President Obama “rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization.” The Acting head of the Office of Legal Counsel, Caroline Krass, and the General Counsel of the Department of Defense, Jeh Johnson, advised the President that military activities in Libya constituted “hostilities” under the War Powers Resolution and thus Section 5(b) of the WPR required him to terminate or scale back the mission after May 20. The President – himself a lawyer – rejected this advice and instead sided with the White House Counsel, Robert Bauer, and the State Department Legal Advisor, Harold Koh, who argued that the actions in Libya fell short of “hostilities” and thus did not implicate Section 5(b)’s termination provisions.

There are many things to say about this but here are a few quick reactions.

As Savage notes, the President has the authority under Article II to make legal determinations for the Executive branch. The process by which he reached this decision, however, was very unusual. The typical (and in my view best) process is for OLC to solicit the views of interested agencies and then offer its interpretation in a written opinion; then the President can, if he wishes, reject that considered OLC interpretation based on his independent judgment. This process has the virtue of placing the presumptive legal decision in the office – OLC – that is institutionally best suited to provide relatively detached legal advice to the President as well as the advice most consonant with Executive branch precedents and traditions. (I am not naïve about how detached OLC is, nor do I think it should be entirely detached; my complex views on this issue are laid out in The Terror Presidency and are summarized on pp. 195-97 of this essay.) OLC is also the government’s institutional expert on interpretations of the WPR. And it has not, traditionally, taken a narrow view of the WPR.

In the Libya decision, however, the typical process was not followed. As Savage explains:

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.

This is not a process designed to produce a sound legal decision. (In the NYT story, former OLC chief Walter Dellinger makes a similar point.) When the President effectively decides the legal question in the first instance based on the input of interested agencies, his legal judgment is inevitably skewed a great deal by wanting to uphold his policy. OLC (and any executive branch lawyer) faces this danger to some degree, but the danger is less pronounced when the initial decision is made in a relatively independent legal office in DOJ as compared to the Oval Office. And indeed in this instance, for reasons I explained here, the best reading of the law was clearly the one that OLC (and DOD) apparently gave the President.

It is interesting and unusual enough that President Obama, of all people, would take an aggressive view of his war authorities and interpret the WPR very narrowly. But the lawyers he relied on to reach this conclusion make the situation even more interesting and unusual. I discount the legal input of the White House Counsel; Bob Bauer is a smart man but neither he nor his office is expert in war powers or situated to offer thorough legal advice on the issue. Legal Advisor Harold Koh, by contrast, spent his entire academic career studying and writing about presidential war powers, including the WPR. Based on this academic record, one would not have expected Koh to push an unusually narrow interpretation of the WPR. Nor would one have expected him to have supported the original constitutional justification for unilateral presidential intervention in Libya. To get a flavor of what one might have expected, consider what Koh’s former colleague Bruce Ackerman said in support of his nomination to lead State-L:

This is the real importance of the Koh nomination. President Obama has selected one of the few lawyers who probed deeply into the constitutional implications of presidential unilateralism and how it might be controlled. Koh would be taking his position as legal adviser at one of the rare moments when it might be politically possible to consider a National Security Charter that aims to restore an effective system of checks and balances.

This is not how things have worked out. One wonders why. One possibility is that Koh has a client, the Secretary of State, who is committed to the Libya intervention, and he is serving his client faithfully. Another possibility is that Koh’s commitments to humanitarian intervention and the “responsibility to protect” outweigh his commitment to his academic vision of presidential war powers. I certainly do not believe that Koh’s academic views should control his advice and judgment during his government service. Nor do I think that his academic writings addressed the precise issue under the WPR that he is now advocating in the government. But for a quarter century before heading up State-L, Koh was the leading and most vocal academic critic of presidential unilateralism in war, and a tireless advocate for institutional cooperation between the political branches in war decisions. I am thus genuinely surprised, as many people are, by his current stance.

This episode makes me wonder how all of this is being taken by the U.S. military. It must be strange to many involved in Operation Odyssey Dawn to be told that not only are they not involved in “war,” they are not even involved in “hostilities.” A midshipman at the Naval Academy wrote to Tom Ricks to say, in light of the original unilateral resort to force in Libya, that he wondered whether the soldiers fighting in Libya “are breaking their oath to obey only legal orders.” I think this is a large overreaction to the initial use of force. And despite my views of the WPR here, I do not think that disobedience would be a proper reaction to the President’s decision under the WPR. The President gets to make the call and his decision is not so far out of bounds to warrant disobedience. But it cannot be pleasant for the men and women involved in this “kinetic military action” to know that the Defense Department General Counsel and the head of OLC think the intervention in Libya as currently executed is unlawful.

Update: Jack Balkin makes similar but more amplified points about the importance of process here.

White House Clarifies Position on Libya and the WPR: US Forces Not Engaged in “Hostilities”

LawFare
by Robert Chesney

Charlie Savage at the NY Times has just reported that the White House is today providing Congress with information on ongoing operations in Libya, including an explanation of the Administration’s position as to why the continuation of the operation beyond 60 days does not violate the War Powers Resolution. The core of the argument, as I understand it, is that current operations do not constitute “hostilities” within the particular meaning of that term as used in the WPR. Does that make sense? It at least has a strong foundation in the past practice of the executive branch under the WPR. Here is some of the relevant background:

The argument begins with the point that the 60-day clock is triggered by the circumstances identified in WPR section 4(a)(1): i.e., U.S. armed forces either are introduced into “hostilities” or into circumstances where “hostilities are imminent.” That being so, the clock ceases to apply when those predicate conditions cease to be satisfied (i.e., US armed forces no longer are in hostlities or in circumstances where hostlities are imminent. Obviously, then, much hinges on the best interpretation of the WPR’s use of the word “hostilities.”

Since the mid-70s, the executive branch on several occasions has weighed in on this issue, taking a fairly consistent view. Here are the highlights as I understand them (if readers feel I’ve misread these or left out something important, I’ll be glad to update):

1975 – The Ford Administration, in the person of the State Department’s Legal Advisor and the Defense Department General Counsel, wrote to Congress that “hostilities” refers to a situation in which U.S. forces are “actively engaged in exchanges of fire with opposing units.”

1980 – The Carter Administration’s Office of Legal Counsel adopts that same definition, and adds that exchanges of fire must be more than merely intermittent or sporadic. The idea is “full military engagement,” not deployments in which U.S. forces from time to time come under limited fire.

1983 – The Reagan Administration declines to treat the WPR as applicable to the deployment of Marines to Lebanon, even after the barracks bombing. A Senate Report insisted that at least after the bombing, the hostilities condition was satisfied, but the Reagan Administration responded that such violence was too episodic to count for WPR purposes.

1993 – The Clinton Administration, with troops on the ground in Somalia from time to time conducting strike operations, writes to Congress to assert that “intermittent military engagements,” in contrast to “sustained hostilities,” did not suffice to keep the clock running (though a report was filed after an initial strike). Some legislators object, but in any event the Clinton Administration did not withdraw after 60 days.

1995 – The Clinton Administration files separate WPR reports after specific strikes in Bosnia, but does not treat each strike as starting the clock. The underlying theory presumably was that the strikes were too intermittent to generate a sustained state of WPR hostilities.

From that perspective, it’s not hard to see how the Administration comes to the view that the current state of US involvement in Libya–i.e., no boots on the ground, no manned aircraft flying combat missions and thus putting pilots in harm’s way as a theoretical matter, UAVs conducting combat missions only sporadically and with seemingly low intensity (isolated strikes on specific vehicles, that sort of thing), and manned aircraft otherwise conducting only support missions like refeuling and jamming–taken as a whole fails to come within the scope of the WPR’s requirements.

That’s not to say it’s an unassailable argument. For one thing, some no doubt would not give as much weight to executive branch interpretations as would, well, the executive branch. And there is the complication of Admiral Stavridis, an American officer, in command of NATO forces from other countries that are engaged on a much more sustained basis in “exchanges of fire.” But as Rick Pildes says in Charlie’s story, it’s not likely in any event that courts are going to weigh in on the matter (As Jack points out below, the Kucinich suit is a non-starter). The question instead will remain largely in the political sphere, with today’s arguments by the executive branch at least benefitting from continuity with the interpretations offered by past administrations of both parties.

Anger ramps up in Congress over Obama’s legal defense of Libya operation

Washington Post

By David A. Fahrenthold and Peter Finn, Sunday, June 19, 4:37 AM

On Capitol Hill, legislators who disagree with President Obama’s legal defense of the military operation in Libya will have two options when they resume their session this week. They could try to cut off funding for the campaign, or they could formally register their disapproval that Obama did it without congressional say-so.

The first tactic has rarely worked in U.S. history.

And the second one hasn’t worked on Obama so far.

Unhappiness in Congress was magnified Saturday by a report that Obama ignored some of his legal counselors when he decided last week that the Libya campaign should not be counted as “hostilities.”

That decision allowed him to bypass the 1973 War Powers Resolution, a law that requires presidents to report to Congress on any ongoing military conflict within a limited period of time. After receiving the report, Congress then has to decide whether to authorize the action taken.

On Saturday, sources familiar with the deliberations said Obama had not overruled a formal opinion from the Justice Department’s Office of Legal Counsel — because there wasn’t one. They can take months or a year to put together.

Instead, the sources said, advisers presented him with their opinions and he chose one that White House counsel and the State Department favored.

Still, many in Congress said they were not persuaded by Obama’s logic for avoiding a congressional debate over the three-month-old conflict.

“The president has had to go through legal contortions because he knows he faces a Congress that would not give him approval,” said Rep. Michael R. Turner (R-Ohio). He has proposed a resolution that would allow Congress to formally “disapprove” of the Libya operation. “This has to be stopped,” Turner said.

This week, the Libya debate will become a key test for House Speaker John A. Boehner (R-Ohio), who appears caught between his members and his own instincts. In the House, legislators from the ideological right and left have demanded a showdown with Obama. But Boehner has seemed wary of a confrontation. When members rallied around a bill to stop the campaign this month, he authored a resolution that gave Obama 14 more days to make his case.

Obama waited 12 days. And then, on Wednesday, he told Congress he didn’t need its permission.

“U.S. military operations [in Libya] are distinct from the kind of ‘hostilities’ contemplated by” the War Powers Resolution, a White House report said.

The logic was that U.S. forces are mainly limited to supply, logistics and intelligence missions — although American drones continue to attack Libyan targets.

On Saturday, sources said Obama had solicited opinions on the matter from the Pentagon, the State Department, White House counsel and the Office of Legal Counsel, which is set up to provide independent legal analysis.

Advisers from the Pentagon and the Office of Legal Counsel, the sources said, believed that the drone strikes required that the Libya operation be described as “hostilities.” Advisers from the State Department and the White House believed they should not.

Obama, trained as a constitutional lawyer, sided against the inclinations of the Pentagon and the Office of Legal Counsel. One source emphasized this was not an illegal, or even very extraordinary, outcome.

Eric Schultz, a White House spokesman, said that “there was a full airing of views within the administration and a robust process that led the president to his view.”

On Saturday, a New York Times report describing his decision making about Libya and the War Powers act further inflamed Obama’s critics on Capitol Hill. Rep. Thomas J. Rooney (R-Fla.) said the report had convinced him that Congress ought to cut off funds for the operation.

“Today, yes, I would” support that, Rooney said. He said he was troubled by the idea that “people inside the Pentagon . . . are saying one thing but then the administration is saying something different.”

But what is Congress prepared to do about it?

On Saturday, a spokesman for Boehner said the New York Times report “reinforces the need for the White House to answer the questions that Congress and the American people have about our involvement in Libya.”

But spokesman Michael Steel was noncommittal about Boehner’s next move. “That’s something we’ll discuss” with GOP legislators, he said.

The two party leaders in the Senate, Majority Leader Harry M. Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) were not available for comment on Libya on Saturday.

One option would be to hold a vote to approve or disapprove of the Libyan campaign, even if Obama has said Congress’s approval isn’t necessary.

Last week, two of Obama’s strongest allies on Libya — Sen. John McCain (R-Ariz.) and Sen. Richard J. Durbin (D-Ill.) — said they wanted such a vote. Durbin last week teamed with Sen. Benjamin L. Cardin (D-Md.) and introduced a resolution that would support the president’s Libyan actions but would set an end date of Dec. 30 and bar the introduction of U.S. ground troops, something Obama has said repeatedly he does not plan to do.

Another would be to seek to cut off funding for the operation. Rep. Dennis J. Kucinich (D-Ohio) said Saturday that he would introduce such a measure this week, when the House plans to consider a bill to fund the Pentagon.

That has happened before. In 1973, for instance, after a cease-fire had been agreed to in Vietnam, Congress voted to prohibit money being used to reintroduce troops into Southeast Asia.

In many cases, Congress has been leery about withdrawing money for troops already in harm’s way. That might still be true here, even though U.S. forces are not on the ground in Libya and face relatively little danger in the air.



Staff writers Scott Wilson, Jerry Markon, Felicia Sonmez, Walter Pincus and Ylan Q. Mui and staff researcher Julie Tate contributed to this report.

On Obama legal stance on Libya

The Libya Debate Heats Up
http://blogs.cfr.org/lindsay/2011/06/14/the-libya-debate-heats-up/

Obama Answers Boehner on Libya
http://blogs.cfr.org/lindsay/2011/06/15/obama-answers-boehner-on-libya/

White House answer on Libya
http://s3.documentcloud.org/documents/204673/united-states-activities-in-libya-6-15-11.pdf

2 Top Lawyers Lost to Obama in Libya War Policy Debate

NYtimes
June 17, 2011
By CHARLIE SAVAGE

WASHINGTON — President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.

A White House spokesman, Eric Schultz, said there had been “a full airing of views within the administration and a robust process” that led Mr. Obama to his view that the Libya campaign was not covered by a provision of the War Powers Resolution that requires presidents to halt unauthorized hostilities after 60 days.

“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”

Still, the disclosure that key figures on the administration’s legal team disagreed with Mr. Obama’s legal view could fuel restiveness in Congress, where lawmakers from both parties this week strongly criticized the White House’s contention that the president could continue the Libya campaign without their authorization because the campaign was not “hostilities.”

The White House unveiled its interpretation of the War Powers Resolution in a package about Libya it sent to Congress late Wednesday. On Thursday, the House speaker, John A. Boehner, Republican of Ohio, demanded to know whether the Office of Legal Counsel had agreed.

“The administration gave its opinion on the War Powers Resolution, but it didn’t answer the questions in my letter as to whether the Office of Legal Counsel agrees with them,” he said. “The White House says there are no hostilities taking place. Yet we’ve got drone attacks under way. We’re spending $10 million a day. We’re part of an effort to drop bombs on Qaddafi’s compounds. It just doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities.”

A sticking point for some skeptics was whether any mission that included firing missiles from drone aircraft could be portrayed as not amounting to hostilities.

As the May 20 deadline approached, Mr. Johnson advocated stopping the drone strikes as a way to bolster the view that the remaining activities in support of NATO allies were not subject to the deadline, officials said. But Mr. Obama ultimately decided that there was no legal requirement to change anything about the military mission.

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.

A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.

The theory Mr. Obama embraced holds that American forces have not been in “hostilities” as envisioned by the War Powers Resolution at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to a supporting role providing refueling assistance and surveillance — although remotely piloted American drones are still periodically firing missiles.

The administration has also emphasized that there are no troops on the ground, that Libyan forces are unable to fire at them meaningfully and that the military mission is constrained from escalating by a United Nations Security Council resolution.

That position has attracted criticism. Jack L. Goldsmith, who led the Office of Legal Counsel during the Bush administration, has written that the administration’s interpretation is “aggressive” and unpersuasive, although he also acknowledged that there was no clear answer and little chance of a definitive court ruling, so the reaction of Congress would resolve it.

Walter Dellinger, who led the Office of Legal Counsel during the Clinton administration, said that while “this is not an easy question,” Mr. Obama’s position was “both defensible and consistent with the position of previous administrations.” Still, he criticized the administration’s decision-making process.

“Decisions about the lawfulness of major presidential actions should be made by the Department of Justice, and within the department by the Office of Legal Counsel, after consultation with affected agencies,” he said. “The president always has the power of final decision.”

Other high-level Justice lawyers were also involved in the deliberations, and Attorney General Eric H. Holder Jr. supported Ms. Krass’s view, officials said.

Matthew Miller, a Justice Department spokesman, said, “Our views were heard, as were other views, and the president then made the decision as was appropriate for him to do.”

This article has been revised to reflect the following correction:

Correction: June 17, 2011


An earlier version of this article misspelled in one reference the surname of the Pentagon general counsel. He is Jeh C. Johnson, not Johnsen.

Monday, June 13, 2011

The Obama administration’s dangerous course on Libya

Washington PostBy Richard G. Lugar,

The House of Representatives sent the Obama administration a strong, bipartisan rebuke on Friday for failing to make the case for war in Libya or seeking congressional authorization for military action. It is critical that the administration understand the significance of this vote, abandon its plans for a nonbinding resolution in the Senate and proceed to seek the requisite debate and authorization for the use of military force, as I have advocated for nearly three months.

The White House called the vote “unnecessary and unhelpful,” but it has only itself to blame. The administration faces bipartisan opposition in Congress because it has, for more than two months, sidestepped the clear constitutional and legislative intent that a president obtain congressional authorization to go to war.

At the time that President Obama was seeking endorsement for military action at the United Nations, he didn’t seek a congressional declaration of war, as specified in Article I of the Constitution. After the fighting began and U.S. planes and missiles had attacked Libyan targets, the president still declined to seek congressional approval.

The president promised that he would act consistent with the War Powers Resolution, which requires congressional approval to continue military action beyond 60 days after it commences, and to consult closely with Congress. These commitments have gone unfulfilled. The administration even barred Defense Department officials from testifying at a public hearing and canceled a private briefing for senators by a Marine general. This disdain for Congress and constitutional principles led to Friday’s nonbinding House resolution.

Belatedly, the president and his allies are trying to establish congressional endorsement for the war through a nonbinding Senate resolution approving “the limited use of military force by the United States in Libya.” But this illustration of the president’s go-it-alone attitude would set a dangerous precedent.

These “sense of the Senate” resolutions are most often used to commemorate non-controversial events such as last month’s resolution celebrating National Train Day — not to authorize a war. The resolution would have no force of law and would not have to be passed by the House. Nonetheless, it would be touted by the administration as evidence of congressional approval for the war.

Passing this resolution would be a profound mistake that would lower the standard for congressional authorization for the use of military force and would forfeit the Senate’s own constitutional role. By setting this precedent in the interests of expediency, Congress would make it far more likely that future presidents will deem a nonbinding vote in one house as sufficient to initiate or continue a war, or marginalize Congress’s involvement in far more consequential war-making decisions than we face now in Libya.

Further, because the president has not made his case to Congress, the American people have no clear understanding of the U.S. interests at stake in Libya, how much this will cost and what other priorities will have to be sacrificed.

Even the goals of the conflict remain unclear. The United Nations sanctioned only protection of civilians, and in March the president said, “Broadening our military mission to include regime change would be a mistake.” But at the Group of Eight summit in France last month he declared that the aim was to ensure that the Libyan people will be “finally free of 40 years of tyranny.” Is the United States obligated to participate in Libya’s reconstruction?

The Founding Fathers gave Congress the power to declare war for good reason: It forces the president to present his case in detail to the American public, allows for a robust debate to examine that case and helps build broad political support to commit American blood and treasure overseas. Little of that has happened here.

The nonbinding House resolution called on the president to issue a report to Congress answering 20 important questions about Libya. If the administration is wise enough to provide these answers promptly, that would be an example of the consultation that has so far been lacking.

Waging war is the most serious business our nation does. Obtaining congressional approval for war is not simple. But because getting out of wars is so difficult, the Founders did not intend that getting into them should be easy. The president should take the lesson from the House vote, retract his endorsement of the Senate resolution and propose a joint resolution with the force of law. Such steps would signal his willingness finally to engage Congress on the Libyan war and be the starting point for a real debate in both houses.

The writer is a Republican senator from Indiana.

© The Washington Post Company

Monday, June 6, 2011

House Sets Votes on Two Resolutions Critical of U.S. Role in Libyan Conflict

NYtimes
June 2, 2011
By JENNIFER STEINHAUER and CHARLIE SAVAGE

WASHINGTON — The House will vote Friday on two measures that are strongly critical of President Obama’s decision to maintain an American role in NATO operations in Libya, reflecting increasing disenchantment among elements of both parties about the United States’ involvement in the conflict.

The decision to put the resolutions to a vote came after Republican leaders earlier this week postponed consideration of one of them, which would direct the president to end American’s military involvement in the operations. It was sponsored by Representative Dennis J. Kucinich, the Ohio Democrat who is one of the most liberal members of the House.

The leadership feared that the Kucinich measure would pass with backing from an unlikely coalition of liberals and conservatives, a step they contended would send the wrong message to allies engaged in other conflicts with the United States.

On Thursday, Speaker John A. Boehner took the unusual step of presenting his own resolution to his caucus to be voted on by the full House on Friday, along with the Kucinich measure.

If either or both were to pass, it would represent the most assertive stance by Congress to date on the Libya conflict and highlight the chronic tensions between the executive and legislative branches over the president’s ability to wage war without Congress’s express approval.

The United States is currently providing NATO with intelligence, logistical support and armed drones in what is largely a bombing campaign against Libyan government forces.

Defense Secretary Robert M. Gates was in Singapore on Thursday, where the Pentagon press secretary, Geoff Morrell, expressed concerns over the prospect of Congress voting against American support for the operations in Libya.

“It sends an unhelpful message of disunity and uncertainty to our troops, our allies and, most importantly, the Qaddafi regime,” Mr. Morrell said. He also warned that the Kucinich measure could harm American relations with NATO allies contributing troops to Afghanistan.

Mr. Boehner’s resolution notes that Mr. Obama has not obtained Congressional authorization for the air offensive in Libya. It demands that the administration provide, within 14 days, detailed information about the nature, cost and objectives of the American contribution to the NATO operation, as well as an explanation for why the White House did not come to Congress for permission.

Last month, Mr. Obama sent a letter to Congress emphasizing that the United States had turned control of the operation over to NATO and that it was primarily providing support to allies. The letter also said the administration supported the idea of lawmakers expressing their support for the operation, but it did not concede that such authorization was legally necessary.

Early in the conflict, the administration said it was within Mr. Obama’s power to initiate American participation in the hostilities without Congress because the combat was of limited scope and duration.

But the War Powers Resolution says that presidents must terminate hostilities after 60 days if they have not been authorized by Congress. That deadline passed on May 20, and the administration has not explained why it thinks it was lawful for the operation to continue.

Congressional opposition to American involvement in Libya sits at center of several otherwise unconnected points of view: the antiwar leanings of the left, the strong dislike of the president by many Republicans, fiscal concerns among Tea Party-backed lawmakers who are increasingly worried about the costs of military conflicts, and a broad feeling on Capitol Hill that the powers of Congress were usurped by the president’s decision not to seek explicit authorization to continue American involvement.

Last week, the House approved an amendment to a military authorization bill that would prevent the deployment of American ground troops to Libya.

“There is a question of how far we stretch our troops,” said Representative Tim Scott of South Carolina, a freshman Republican. “Also, what is the reason that we are there? I don’t think the answer to either of those questions is clear here.”

Mr. Kucinich’s resolution, citing the War Powers Resolution, directs the president to remove American armed forces from Libya 15 days after the date of adoption. It could conceivably find more support among Republicans than Democrats, some of whom will find themselves squeamish about rebuking a Democratic president. But the Republican leadership opposes the Kucinich measure.

It “would undermine our troops in harm’s way and undercut our allies who have stood by us in Afghanistan and other areas abroad,” Mr. Boehner said in a statement. “Regardless of how we got here, we cannot suddenly turn our backs on our troops and our NATO partners who have stuck by us for the last 10 years.”

The Democratic leadership suggested that it would not back either resolution. “The resolutions by Speaker Boehner and Congressman Kucinich, as currently drafted, do not advance our efforts in the region and send the wrong message to our NATO partners,” said Representative Nancy Pelosi in a statement.

Several Republicans leaving a meeting with Mr. Boehner Thursday said that they would have to consider both measures.

“As a 22-year combat veteran, I would be happy to stand beside Dennis Kucinich on this,” said Representative Allen B. West of Florida, a Republican freshman.

In that, Mr. West joins an unlikely alliance with Representative Jerrold Nadler, Democrat of New York. “The president had no authority to go into Libya,” Mr. Nadler said. “There was no threat to the United States, and I think the action was illegal and wrong as a matter of constitutional law.”

Mr. Boehner’s measure is an appealing alternative to some members. “I think the president, if he’d come here to make the case, probably would have had widespread support,” said Representative Adam Kinzinger, Republican of Illinois. However, Mr. Kinzinger said he did not support removing American forces from the operation in Libya and supported the overall mission as vital to American interests.

Even if passed by the House and the Senate, it is unclear how much impact either measure would have. A 1983 Supreme Court ruling raised doubts about the constitutionality of any attempt by Congress to direct the executive branch to do something using a resolution that the president has no chance to veto.

However, such a resolution could increase political pressure on the White House and set the stage for a later effort to cut off funds for further operations in Libya in a budget bill.

NATO raids pound Tripoli as Moscow readies peace bid

Imed Lamloum – Fri Jun

TRIPOLI (AFP) – Explosions rattled the Libyan capital early Friday as Russia prepared to send an envoy on a shuttle mission to try to broker a negotiated settlement between its Cold War ally and the rebels.
Four explosions were heard at 11:35 pm (2135 GMT) Thursday from the centre of Tripoli, followed by others about 15 minutes later.
Then at 1:45 am (2345 GMT), four powerful blasts shook the district where Kadhafi's residence is located not far from the city centre.
An army barracks in the same sector had been the target of several raids last week.
Earlier this week, government spokesman Mussa Ibrahim said NATO air raids on Libya had killed 718 civilians and wounded 4,067 since they were unleashed on March 19 and up to May 26.
In Washington, US military chief Admiral Mike Mullen pointed to "some signs, certainly in the last few days, that Kadhafi is becoming more and more isolated."
He noted the defection of oil minister Shukri Ghanem, who had been a key figure in the regime, along with a group of "young generals" who had also parted with Kadhafi.
Mullen welcomed NATO's extension of its UN-mandated mission to protect civilians through military action until late September.
Russian President Dmitry Medvedev said Moscow will be sending an envoy to Tripoli and the rebels' capital of Benghazi to mediate, the Italian news agency ANSA reported, quoting diplomats.
Medvedev stressed the importance of a negotiated settlement at talks with Italian Prime Minister Silvio Berlusconi in Rome.
"We would like as much as possible for the problem to be resolved through negotiations and not by military means," Medvedev told reporters.
Russia has enjoyed close ties with Kadhafi's regime and abstained from the UN Security Council vote in March that gave the go-ahead for international military action in Libya.
But it has increasingly distanced itself from the regime and at a G8 summit in France last week, Medvedev pledged to ramp up diplomatic efforts to end the conflict.
China, which also abstained in the Security Council vote, announced on Friday that it had opened talks with the rebels.
China's ambassador to Qatar, Zhang Zhiliang, held talks with Mustafa Abdul Jalil of the rebel National Transitional Council (NTC) in recent days, foreign ministry spokesman Hong Lei said in a statement.
"The two sides exchanged views on the Libyan situation," Hong said.
"China's position on the Libyan issue is clear -- we hope that the Libyan crisis can be resolved through political means and that the future of Libya is decided by the Libyan people."
He did not specify when or where the meeting took place.
A commission of inquiry set up by the UN Human Rights Council in Geneva, meanwhile, has accused Kadhafi's regime of carrying out systematic attacks on the population, charging it committed both crimes against humanity and war crimes.
The commission said it "reached the conclusion that crimes against humanity and war crimes have been committed by the government forces of Libya."
The investigative body noted it had received "fewer reports" of abuses by opposition forces but said it "did find some acts which would constitute war crimes."
In Benghazi, NTC vice president Abdelhafiz Ghoga admitted that rebels had committed "violations, twice" as rebels feared terrorist acts by pro-Kadhafi forces in the rebel bastion.
"We feared a fifth column was operating in the city," he said, adding that rebel forces "are trying to treat prisoners according to the Geneva convention."
Ghoga also announced that rebel forces had detained three suspects in a car bombing that rocked Benghazi on Wednesday but caused no casualties.
"We captured three of the culprits behind the car bomb attack, we are looking for the others," Ghoga said.
Libya's rebel council earlier blamed Kadhafi's forces for the "terrorist attack" that hit the Tibesti hotel, where rebel leaders, journalists and diplomats stay.
Off the Tunisian coast, up to 270 migrants were missing after a ship packed with refugees fleeing Libya and headed for Italy capsized, Tunisian authorities said.
Army and coastguard teams lifted 570 people off the overcrowded vessel after it ran aground and capsized near Tunisia's Kerkennah islands on Wednesday.
But between 200 and 270 were still missing after they tried to scramble aboard a flotilla of rescue boats, Tunisia's official TAP news agency said.

Boehner introduces alternative resolution on Libya

By David A. Fahrenthold,

President Obama could get a second chance to sell Congress on the military operation in Libya, thanks to some last-minute help from an unlikely ally: House Speaker John A. Boehner.

On Thursday, with some liberals and conservatives trying to get Congress to force a withdrawal from Libya, Boehner (R-Ohio) offered an alternative. He introduced a resolution that would give Obama 14 more days to make his case.

Boehner’s resolution would vent congressional anger, stating that “the president has not sought, and Congress has not provided, authorization” for the operation. It also contains a threat that Congress might cut off funding if Obama defies Congress.

But the resolution stops short of demanding that the operation stop and doesn’t declare that Congress officially disapproves of it.

“It does not have Congress taking a stand,” said Rep. Michael R. Turner (R-Ohio), who had attracted more than 60 cosponsors for a separate bill saying that Congress disapproved of the Libya operation. Obama “has already had 75 days. I don’t believe that there’s additional information that he’s going to provide.”

The U.S. military joined the campaign to protect civilians against the forces of Moammar Gaddafi on March 19, and provides a significant amount of the logistical and intelligence support for the NATO-led effort. Under the 1973 War Powers Resolution, Obama was required to obtain congressional approval for the campaign within 60 days of notifying Congress that it had started.

Last month, that deadline came and went.

The Senate reacted slowly: Legislators introduced a resolution supporting the effort, then went on recess. But this week, an unexpected coalition in the House has turned sharply against the effort.

On Wednesday, Republican leaders had to abruptly shelve a proposal from one of Congress’s perennial outliers — Rep. Dennis J. Kucinich (D-Ohio) — that would have demanded Obama withdraw forces from the Libya campaign within 15 days. The bill turned out to have much broader support than expected.

Boehner’s resolution was intended as a less-drastic way to express congressional unhappiness. In a meeting with fellow Republicans on Thursday afternoon, Boehner said of Kucinich’s bill that it would be wrong to abruptly pull out of a NATO-led operation.

“We will have turned our backs against our NATO partners who have stuck by us for the last 10 years,” Boehner said, according to an account from an aide. A spokesman for Defense Secretary Robert M. Gates said something similar Thursday: “To unilaterally abandon [the Libya] mission would have enormous and dangerous long-term consequences.”

On Friday, aides said, the House is expected to vote on both proposals. If Boehner’s resolution passes, some Republicans said they hope Obama takes advantage of the do-over.

At the White House on Thursday, however, press secretary Jay Carney gave no signal that Obama will change the way he has dealt with Congress on Libya.

“We believe that the goal the president has is shared by a vast majority of members of Congress,” Carney said. “And we have consulted with Congress every step of the way since we have initiated this policy.”

Monday, May 2, 2011

Samantha and Her Subjects

The National Interest
April 19, 2011
Jacob Heilbrunn [2]

HUMANITARIAN INTERVENTION—the conviction that American presidents must act, preemptively if necessary, to avert the massacre of innocents abroad—is steadily acquiring a new prominence in the Obama administration. For America’s foreign-policy elite, it is a precept that provides a way to expiate the sins of the past, either bellicose action (Vietnam) or complacent inaction (Rwanda). It not only holds out the expectation of protecting endangered civilians but also the promise of acting multilaterally to uphold international laws.

Yet the consequences of such intervention have rarely been more vexing. As the world’s leading military power—it devotes more to defense than the next ten biggest-spending countries combined—America finds itself lurching from conflict to conflict, often with little idea of how they will end, other than the hope that the forces of righteousness will prevail, even as Washington becomes progressively more enmeshed in local disputes. In its quixotic quest to create a global and irenic order by force, it is flouting Shakespeare’s admonition that it is best to “fling away ambition: By that sin fell the angels.”

This is particularly so in the Middle East, where the Obama administration and, to a lesser degree, Europe face nothing less than a potential cataclysm of engagements, until the entire region is in tumult. The result is a self-reinforcing doctrine of permanent revolution. In creating, or abetting, chaotic conditions, it becomes necessary to intervene again and again, all in the name of averting further chaos.

These incursions embrace the idea—some more, some less—of humanitarian intervention. The conceit is that when America intervenes, it is not doing so on the basis of sordid national interests but, rather, on the grounds of self-evidently virtuous human rights or, in its most extreme case, to prevent genocide. This development—to call it a mere trend would be to trivialize its true import—has been a long time in the making.

Indeed, in an essay published in The National Interest (now reprinted in The Neoconservative Persuasion), Irving Kristol contended that human rights had become a kind of unquestioned ideology. Kristol traced its origins back to the debates between William Gladstone and Benjamin Disraeli over intervention in the Balkans, when the Turks massacred some twelve thousand Bulgarians. The realist Disraeli, who sought to check Russia, was unmoved by Gladstone’s humanitarian appeals to endorse self-determination for the Balkan states. But perhaps an even earlier instance came in the lead-up to British involvement in the Crimean War, revolving as it did around the “Eastern Question”; the Turks and Russians could fight it out for influence in the Mediterranean—and the French could get in their squabble over Catholics, without much bother to the Brits. As liberal politician John Bright argued on March 31, 1854, in his great speech to Parliament against squandering power in foolish adventures abroad:

How are the interests of England involved in this question? . . . it is not on a question of sympathy that I dare involve this country, or any country, in a war which must cost an incalculable amount of treasure and of blood. It is not my duty to make this country the knight-errant of the human race, and to take upon herself the protection of the thousand millions of human beings who have been permitted by the Creator of all things to people this planet.

Transforming the United States into a knight-errant, though, is at the heart of liberal internationalism. As in nineteenth-century Britain, so in modern America; just as with Gladstone, the current manifestation of this impulse first became apparent in the Balkans, when NATO established a no-fly zone there, during the bombings of 1995. And so a new generation of liberal hawks emerged, overcoming the discomfiture associated with the use of force in Vietnam, seeing themselves as divine intervenors for mistreated ethnic minorities abroad. It amounted, in some ways, to a multicultural foreign policy, or at least one that sees America as key to creating a new democratic order. Madeleine Albright, for example, announced during the Clinton administration, “If we have to use force, it is because we are America. We are the indispensable nation. We stand tall, and we see further than other countries into the future.”

The hubris of ascribing a unique percipience to the United States was hardly confined to Albright. It also amounted a fortiori to the credo of the George W. Bush administration, which witnessed a fusion of neoconservatives and liberal hawks. “Damn the doves,” Christopher Hitchens announced in the conservative London Spectator in 2001 as the United States readied to topple Saddam Hussein. While in Dissent, Michael Walzer declared that the Left was being “stupid, overwrought, grossly inaccurate” and should accept America’s imperial status, modeling any opposition to the Iraq invasion on the Little Englanders during the Boer War.

Then, as the insurgency developed, the alliance melted away. A notable defector was Peter Beinart, who first wrote a book calling for a nationalistic Democratic Party, then issued a second one taking it all back.

Now the alliance between liberal hawks and neocons is returning, epitomized in an open letter sent to the White House in February 2011 by the Foreign Policy Initiative (successor to the Project for the New American Century), demanding that President Obama act to avoid a humanitarian disaster in Libya. Signed by Paul Wolfowitz and William Kristol as well as Martin Peretz and Leon Wieseltier, the old gang was back together again. Robert Kagan declared Obama’s speech on Libya to be “Kennedy-esque,” the ultimate term of neocon approbation. Intellectuals as a class have become habituated to demanding military action to make up for America’s failure to prevent various atrocities and genocides. As David Rieff observed with vexation:

This war—let us call it by its right name, for once—will be remembered to a considerable extent as a war made by intellectuals, and cheered on by intellectuals. The main difference this time is that, particularly in the United States, these intellectuals largely come from the liberal rather than the conservative side.

No doubt the Obama team was itself torn on the issue of intervention. It entered office emphasizing realist tenets. Now it is jettisoning them. The intellectual incoherence of the White House was epitomized by a statement from Deputy National Security Adviser Ben Rhodes:

What we are doing is enforcing a resolution that has a very clear set of goals, which is protecting the Libyan people, averting a humanitarian crisis, and setting up a no-fly zone. Obviously that involves kinetic military action, particularly on the front end.

But Washington is not “getting into an open-ended war, a land invasion in Libya.”

The plan, however, seems to be for America to act as an arsenal of freedom rather than to promote its own domestic welfare. Today this Wilsonian doctrine is sold as a form of atonement for past wrongdoings—that, unless we intervene decisively in what is often a civil war to tip the balance of the scales to one side, America will once again have blood on its hands. Never again, in other words, will become ever again.

IT WOULD be hard to think of a more ardent promoter of this doctrine than Samantha Power. Power is not just an advocate for human rights. She is an outspoken crusader against genocide. She has referred self-deprecatingly to herself as the “genocide chick.” She has made it her life’s mission to shame American statesmen into action and to transform U.S. foreign policy. And as she seeks to create a new paradigm, she is becoming a paradigmatic figure. She is a testament to the collapse of the old foreign-policy establishment and the rise of a fresh elite. This elite is united by a shared belief that American foreign policy must be fundamentally transformed from an obsession with national interests into a broader agenda that seeks justice for women and minorities, and promotes democracy whenever and wherever it can—at the point of a cruise missile if necessary. The same century-long progressive expansion of the democratic franchise that has taken place at home is also supposed to occur abroad. She is, you could say, the prophet armed.

Along with Secretary of State Hillary Clinton and UN Ambassador Susan Rice, Power has become closely—and publicly—identified as one of the advisers most responsible for pushing Obama to intervene in Libya. It is a stunning turnabout. Power served then-Senator Obama as a top aide on foreign policy, taking a leave of absence from the Kennedy School at Harvard. But during the presidential campaign, Power announced that Hillary Clinton (not yet in Barack’s employ), who had been relentlessly bashing her boss, was a “monster.” A furor erupted. Power resigned. Her career with Obama was over.

Only it wasn’t. The late diplomat Richard Holbrooke, a close friend, called her “mesmerizing.” Once Obama was elected, she landed a post as a senior adviser on the National Security Council, where she has become an increasingly influential and distinctive voice. Her rise there is even more astonishing given that National Security Adviser Tom Donilon was a deputy to Warren Christopher in the Clinton administration—and Power bitterly assailed that secretary of state for his dithering over Bosnia.

Power, unlike many liberal hawks, was an opponent of the Iraq War. When I hosted a panel with her in 2004 at UCLA that included journalist James Mann and scholar Chalmers Johnson, I asked how she was able to reconcile her espousal of humanitarian intervention with failing to put a stop to Saddam Hussein’s depredations. Her response? The Bush administration was not acting multilaterally and Saddam’s actions, at that point, didn’t meet the definition of genocide even if they had in the past. It is an answer that I never found fully satisfactory, at least for someone who was otherwise championing the cause of stopping mad and bad dictators around the world.

Indeed, absent Power, Obama may not have intervened in Libya. Obama now uses arguments to justify the intervention that are somewhat redolent of Bush’s about Iraq. Power has almost single-handedly revived the alliance between liberal hawks and neocons; as one of the chief promoters of the Iraq War, Fouad Ajami, declared in the Wall Street Journal:

In Bosnia, as in Libya a generation later, the standard-bearer of American power had a stark choice: It was either rescue or calamity. Benghazi would have been Barack Obama’s Srebrenica, the town that the powers had left to the mercy of [General] Ratko Mladic.

An icon among the human-rights lobby, she has made it her personal crusade to ensure that American presidents act decisively to forestall, impede or halt the murder of civilians abroad. When President Obama gave his speech at the National Defense University in March, he explained military action in Libya protected the innocent; he was channeling Power:

To lend some perspective on how rapidly this military and diplomatic response came together, when people were being brutalized in Bosnia in the 1990s, it took the international community more than a year to intervene with air power to protect civilians.

In fact, a few hours before Obama’s speech, Power herself told an audience at Columbia University, in words that anticipated Obama’s, that “in the Balkans it took three years for the international community to use air power to prevent heavy weapons from firing on civilians. In Libya it took a little more than a month.”

The invocation of Bosnia was not adventitious. It has become the siren song of liberal interventionists. Part of the legend of Power is her first mission to Bosnia, where she filed reports for the Boston Globe and other publications about Serbian belligerence and Western inaction. Power became the anti–Rebecca West—where West lionized the Serbs standing up to fascism in the 1930s in her book Black Lamb and Grey Falcon, Power became a heroine chastising America and Europe for their lassitude in confronting contemporary fascist impulses from West’s former freedom fighters. This was, at bottom, a new Spanish Civil War for Power and her cohort—a chance to choose sides, to experience good and evil, not vicariously but up close, and to denounce it. It is important to remember that when Power traveled to Bosnia, she frequently met with and chastised government officials, including Ambassador Peter Galbraith, for not doing more against Serbian iniquities (a favor he returned as Obama hesitated about intervention in Libya). Not for her the Weberian Wertfreiheit, or objectivity, that American newspapers inculcate. Power epitomizes an older model—the crusading journalist.

BUT POWER’S journalistic triumphs were a dress rehearsal for her next career as a professor and author of “A Problem From Hell”: America and the Age of Genocide, which won a Pulitzer Prize.

It is a bold effort. Stylishly written, packed with vignettes and sharp portraits, it essentially rewrites much of twentieth-century American history in the shadow of genocide. She observes that, again and again, Western powers looked away from massacre. The problem, she famously declared, wasn’t that America’s policy failed. It was that it worked. Reticence about protesting mass murder was a constituent part of America’s hard-nosed, realist approach to foreign affairs. What is missing from Power’s work, however, is a political context. There seems to be the assumption that Washington can always be on the right side of history—that American presidents can ignore domestic and international considerations simply to plunge into conflicts on the side of the beleaguered whenever they feel like it.

It is also notable that Power, in her extended case studies of genocide, ignores some of the biggest examples of the past century. There is no mention of Stalin’s man-made Ukrainian famine. There is no mention of Mao’s Cultural Revolution, which killed tens of millions.

Perhaps this is because these cases don’t quite fit with her theory that the American government’s deliberate indifference has invariably been key in the failure to stop mass deaths. Rather, many on the American and British left were bedazzled by what they saw as Communist dictatorships greatly leaping forward, whatever the human toll might be. It was active blindness on the part of these intellectuals, a shameful historical legacy that nothing can efface. As Saul Bellow once observed, “A great deal of intelligence can be invested in ignorance when the need for illusion is deep.”

The true strength of Power’s book is as a literary work, a ringing and idealistic call to arms. It does not merely recount. It instructs its reader what is to be done. Power’s work begins with a bang—the 1921 assassination in Berlin of Mehmed Talat, the former Turkish interior minister who presided over the massacre of Armenians. It was one of the few actions, as Power notes, taken to punish the Turks. Woodrow Wilson, eager to remain neutral in World War I, had resisted the calls of his ambassador to the Ottoman Empire, Henry Morgenthau, to protest the killings of Armenians. Power castigates Wilson for refusing to “declare war on or even break off relations with the Ottoman Empire.” She would have taken America onto the European battlefields—and into the bloodbath—far earlier. In going to war against Germany, Wilson told Congress, “it seems to me that we should go only where immediate and practical considerations lead us and not heed any others.” According to Power, “America’s nonresponse to the Turkish horrors established patterns that would be repeated.”

What Power does not discuss is Wilson’s conduct of the war, namely his decision to intervene after he had promised Americans he would not. If anything, Wilson, who promised the war to end wars, was wildly idealistic, anything but a hardened realist, someone who was bamboozled during the Paris peace negotiations by his French and British counterparts, the champion of the League of Nations, whose headquarters in Geneva became a testament to fecklessness during the 1930s. It seems peculiar to condemn Wilson for not having been idealistic enough.

When it comes to World War II, Power has a far stronger case to make. The wartime Allies, confronted with the crime of the century, focused on battling Nazism rather than exposing its genocidal campaign against the Jews and other ethnic and religious minorities. Her hero is the Polish-Jewish lawyer Raphael Lemkin who invented the neologism “genocide.” He was pivotal to the new United Nations’ adoption of a convention declaring genocide a violation of international law, though America refused to sign it for four decades. Now it provides a basis for military intervention.

Which returns us to Bosnia yet again. Power does an excellent job of limning the reluctance of the George H. W. Bush administration to intervene. As then–Secretary of State James Baker famously put it, “We don’t have a dog in this fight.” Instead, to quell charges of its heartlessness, the White House sent American troops to Somalia in a humanitarian venture—a disastrous decision that got America bogged down in a bloody civil war. Next, the Clinton administration came under fire for doing the same sort of hand-wringing over Bosnia as its realist predecessor—surely the Left could be counted on for compassion? Yet then it remained reticent about Rwanda, allowing the Hutus to conduct mass killings of hundreds of thousands of Tutsis.

Power’s verdict is withering:

The real reason the United States did not do what it could and should have done to stop genocide was not a lack of knowledge or influence but a lack of will. Simply put, American leaders did not act because they did not want to. They believed that genocide was wrong, but they were not prepared to invest the military, financial, diplomatic, or domestic political capital needed to stop it.

Power hopes to once and for all turn the tide against American lassitude, against the Democratic slogan propounded by presidential hopeful George McGovern in the 1972 campaign—“Come Home, America.” Liberals were then opposed to Ronald Reagan’s support for the Nicaraguan contras, even though he portrayed that partly as a humanitarian venture, pointing to the human-rights abuses perpetrated by the Sandinistas. Reagan, for all the bellicosity, was loath to send American troops into combat, withdrawing them from Lebanon after the bombing of the Marine Corps barracks in 1983. What Power overlooks, or minimizes, is the political context of a country in which the term “no more Vietnams” carried, and continues to carry, great political weight. It is these old thought patterns that Power wants to refashion, turning the United States into a nation that wields force wherever it deems fit—not for security, but for the betterment of others, secure we will not squander resources because of the justness of our cause.

Power has a penchant for dramatizing history through people rather than considering broader forces. She states in the acknowledgments to “A Problem From Hell” that a friend from Hollywood advised her to create a drama by telling the story through characters. And that is what she did.

AS HER other tome about the United Nations official Sergio Vieira de Mello—Chasing the Flame: One Man’s Fight to Save the World—makes clear, however, Power champions her own kind of great-man history in which a lonely hero stands up for truth, justice and the international way. She produces a morality play rather than a conventional history. In a sense, Power, you could argue, is addicted to hero worship, beginning with Raphael Lemkin and ending with Obama. In fact, in her acknowledgments, she observes that she offered “whatever help I could to Barack Obama, the person whose rigor and compassion bear the closest resemblance to Sergio’s that I have ever seen.”

This seems excessive. Vieira de Mello was a Brazilian United Nations bureaucrat. He served the UN in a number of hot spots—East Timor, Rwanda, Cyprus, Cambodia, Lebanon and the Balkans (where Power first met him in her capacity as a journalist). He was a UN high commissioner for human rights and was murdered along with twenty other members of his staff in August 2003 when he was the secretary-general’s special representative in Iraq. He served bravely. Perhaps he would have become secretary-general. But to elevate him, as Power does, into the stuff of legend defies credulity. For her Vieira de Mello serves as a beacon, a symbol of what true internationalism might accomplish.

As Power portrays it, Vieira de Mello is everything the United States was not under George W. Bush—dignified, restrained, attentive to local conditions, eager to negotiate with foreign tyrants. His death in the bombed-out Canal Hotel serves as a sign of the blundering malignancy of the land of the free. Obama, like Vieira de Mello, is supposed to personify the better side of America. He represents patience and understanding, and a readiness to negotiate with authoritarian leaders when necessary rather than refusing to deal with them at all.

But as Michael Massing observed in an incisive review in the June 9, 2008, issue of the Nation, Vieira de Mello actually reflected many of the worst traits of the UN. According to Massing:

While she presents him as embodying the UN system at its best—its dedication to humanitarianism, multilateralism and dialogue—a strong case can be made, based on the evidence she presents, that he represented the UN system at its worst—its timidity, mediocrity and zeal for self-protection.

Instead of being a crusader, Vieira de Mello was ready to compromise. For example, Power writes that when it came to protecting the rights of Vietnamese boat people,

he could have gone to greater lengths to use his pulpit at [the UN’s refugee agency] UNHCR to try to ensure that the Vietnamese were more fairly screened in the camps and were better treated en route back to Vietnam. This was the first of several prominent instances in his career in which he would downplay his and the UN’s obligation to try to shape the preferences of governments. By the 1980s he had come to see himself as a UN man, but since the organization was both a body of self-interested governments and a body of ideals, he did not seem sure yet whether serving the UN meant doing what states demanded or pressing for what refugees needed.

Such tentative statements, as Massing observes, are acutely at odds with the fire-breathing Power of “A Problem From Hell.” There she denounced statesmen for doing what Vieira de Mello did. This raises the question of whether Power is willing to make any accommodation necessary to cater to her own new boss.

Nor did the role that Vieira de Mello played in Bosnia turn out any better. It’s hardly a secret that the UN disgraced itself in the Balkans, where it served as a de facto accomplice to the Serbs. Power recounts that Vieira de Mello was touring the former Soviet Union while Serbian General Ratko Mladic

presided over the systematic slaughter of every Bosnian man and boy in his custody, some eight thousand in all. When the Serb mass graves were discovered six weeks later, Vieira de Mello was stunned. “I never thought Mladic was this stupid,” he said, projecting his own reverence for reason onto one who clearly observed different norms. “The massacre was totally unnecessary.”

(What massacre, incidentally, is necessary?) In this telling, Vieira de Mello, who sought to curry favor with leading Serbs, sounds less like an international statesman than a gullible technocrat. Power’s implicit criticisms of Vieira de Mello suggest, as Michael Massing notes, that she is wrestling with the contradictions of espousing an idealistic credo and implementing a policy. (Such would seem to be the case, for example, when she defends Obama administration policy on Guantánamo Bay, wildly at variance as it is with the president’s promises circa 2008 to shutter the detention facility promptly.)

Power recounts other less-than-inspiriting episodes. She notes that in 1999, after the Washington Post reported that several UN weapons inspectors in Iraq were sending information to the Clinton administration, Vieira de Mello almost resigned. Fabrizio Hochschild, his special assistant, thought that some kind of démarche to Richard Butler, the head of the UN inspections team, was required. But he was, Power reports, “taken aback when he saw Vieira de Mello greet Butler on his next visit as if nothing had happened. No matter how great his outrage, Hochschild noted, Vieira de Mello remained as reluctant as ever to make an enemy.” There can be no doubting that Vieira de Mello’s extensive experience in war zones would have made him a valuable adviser, if the Bush administration had been disposed to listen to his advice, which it was not. He had, as Power observes, frequently “watched as promising postwar transitions collapsed because of a failure to fill the security void.”

Power’s assumption appears to be that given the right approach, Iraq might not have degenerated into sectarian warfare. There can be no doubting that the Bush administration botched the occupation. But it is unclear such interventions ever turn out well. It is not just the hubristic evildoers on the right who fail to build up new and better societies in the wake of war; incursions of this sort may simply be doomed. Doesn’t Iraq, in fact, cast further doubt on the efficacy of so-called humanitarian ventures?

NOW POWER is behind the rush to fill the security void in Libya. As Secretary Clinton told ABC News in March:

We learned a lot in the 1990s. We saw what happened in Rwanda. It took a long time in the Balkans, in Kosovo to deal with a tyrant. But I think . . . what has happened since March 1st, and we’re not even done with the month, demonstrates really remarkable leadership.

Power provided the tutorials these past years, both to Obama and to an entire class of liberal hawks. She may be the most influential journalist-turned-presidential-adviser since a young Walter Lippmann drafted the Fourteen Points for Woodrow Wilson, only to become a chastened realist after the Treaty of Versailles made a mockery of Wilsonianism and the internationalist dream.

Perhaps Power’s next destination is to become United Nations ambassador. Maybe she will follow in the footsteps of Madeleine Albright and ultimately become secretary of state. In his memoir, The Audacity of Hope, Obama observed that Power “combed over each chapter.” Now she has begun to exercise the same influence over his approach to foreign affairs. Obama entered office, like George W. Bush, promising to repudiate the arrogance of his predecessor, only to be seduced by the lure of militant democracy.

Power’s argument that there is a coincidence between humanitarian intervention and American national interests marks a profound shift in justification for military action. Rhetorically, she espouses a move away from fighting Islamic terrorism to battling aggressors under the banner of humanitarian intervention. This is supposed to mark a fundamental break with the Bush administration, whose approach to confronting terrorism she denounced in a lengthy essay in the New York Times in 2007. Whether it amounts to one in practice is another matter.

Even Obama didn’t try to argue that genocide was taking place in Libya. Instead, this was a preemptive strike (ah, how redolent again of the 2003 Iraq invasion) against a potential massacre, one that would have profound implications for the region. It was in America’s national interest to intervene. And so he plunged the United States into a new conflict. Where does Power draw the line? The bar for preventing genocide may well have been set too high in the past, as she argues. But she, in turn, may be setting it too low, providing an ideological smokescreen for the use of American military force in dubious circumstances, something she never adequately addresses. She runs the risk of exposing America to the charge of hypocrisy for not intervening in countries where brutal mistreatment of the local population is taking place, as in Zimbabwe, while providing a validating and dangerously palatable logic for American overextension. Power’s solution to the conundrum that has bedeviled the Democratic Party since Vietnam—when to sanction the use of force abroad—is to support wars of national liberation. This is likely not a solution at all.

In a speech in 2006, Power told graduating students at Santa Clara University Law School “to demand that our representatives are attentive to the human consequences of their decision making.” The new round of engagements abroad by the Obama administration may well come to be seen as the last glimmerings of American hubris. “Kings can have subjects,” George F. Kennan once observed, “it is a question whether a republic can.”

It would be no small irony if, in her zeal to reshape American foreign policy in the image of liberal internationalism, Power were to usher in its demise.

Image © Associated Press/Charles Dharapak