Marty suggested that the Clinton and Obama Administrations have been seeking an alternative to these problematic approaches that accounts for all post-WW II executive practice with the (dramatic) exception of the Korean War. Marty cited Walter Dellinger’s OLC memos from the Clinton administration and Caroline Krass’s memo on initiation of the Libyan intervention, which calibrated the degree of presidential unilateralism permitted to the duration, intensity, and scope of the military intervention. In essence, those memos suggest (without articulating and hard and fast rules) that the President alone can authorize brief and relatively costless (in blood and treasure) interventions, while bigger, more protracted conflicts require congressional authorization.
Thursday, January 12, 2012
re: Executive Authority & War Making
Over at Lawfare, Ben Wittes has been reposting Peter Marguiles' dispatches from the AALS conference. This one summarizes the discussion there had on the different views of the President's authority to engage in hostilities absent Congressional authorization. Back in March, DCExile echoed Jack Goldsmith (also of Lawfare) here. Now, Marty Lederman has outlined an eminently sensible approach: