Legality of Libyan Actions Challenged by US Lawmakers

[illram]

BBC:

A bipartisan group of lawmakers has sued the Executive branch, charging that the ongoing Libyan operation violates the War Powers Act. This follows a recent 32 page letter from the Administration in response to Republican Speaker John Boehner's ongoing allegations that the President has usurped his authority to declare war and/or continue hostilities in Libya without Congressional Approval. Highlights of the article:

President Barack Obama does not need congressional approval for the US to continue its role in the Nato-led Libya mission, the White House has said.

In a 32-page document, the White House said the president already had legal authority to order forces into Libya.

A Vietnam War-era law states Congress must authorise participation in hostilities longer than 60 days.

The current actions of US forces in Libya do not amount to full "hostilities". That, in a nutshell, is why the Obama administration says it doesn't need congressional authority, under the War Powers Resolution.

"The president is of the view that the current US military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization," the White House wrote.

"US military operations are distinct from the kind of 'hostilities' contemplated by the resolution's 60-day termination provision," it added.

The US role in Libya involves helping Nato aircraft with refuelling operations and assisting with intelligence-gathering, the White House says.

The Obama administration insists that the US is not engaged in sustained fighting or "active exchanges of fire with hostile forces" that put US troops at risk.

Under the US constitution, the power to declare war lies with Congress.

If the president orders the US military into a conflict without an explicit declaration of war, the War Powers Resolution requires him to seek authorisation from Congress within 60 days or to end US involvement in the conflict.

The law allows the president to extend the period before going to congress for another 30 days.

Sunday marks 90 days since the US joined the Nato-led no-fly zone mission over Libya.

Mr Boehner said that the administration would be in breach of the resolution unless the White House "asks for and receives authorisation from Congress or withdraws all US troops and resources from the mission".

The White House rebuttal came as a bipartisan group of US lawmakers sued Mr Obama in federal court for taking military action in Libya without authorisation from Congress.

The lawsuit alleges that the president had violated the US constitution in bypassing Congress.

The lawsuit, which also targets Defence Secretary Robert Gates, challenges the policy "that any president can take the US to war unilaterally", Democratic Congressman Dennis Kucinich of Ohio said.

What do you think? You can read the War Powers Act here.

Here is the law broken down:

(c) Presidential executive power as Commander-in-Chief; limitation
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to
(1) a declaration of war,
(2) specific statutory authorization, or
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

The War Powers Act then goes onto state a basic process for the executive use of force abroad. Essentially, any deployment in preparation of any hostilities without a congressional declaration of war requires an initial report:

(a) Written report; time of submission; circumstances necessitating submission; information reported
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

This triggers a 90 day period in which the President can basically do what he wants, but must stop the operation at the end of the 90 day period absent Congressional approval.

Some members of Congress are essentially saying that this action qualified as hostilities, while the President disagrees. Here is the President's basic argument, from his Report:

The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision.U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S.operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof,or any significant chance of escalation into a conflict characterized by those factors.

This, however, is from the report provided to Congress as per the War Powers Act:

Since April 4, U.S. participation has consisted of: (1) non-kinetic support to the NATO-led operation, including intelligence, logistical support, and search and rescue assistance; (2) aircraft that have assisted in the suppression and destruction of air defenses in support of the no-fly zone; and (3) since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO-led coalition's efforts.

Read more: http://www.foxnews.com/politics/201...ehner-on-war-powers-resolution/#ixzz1PSdwF3j0

Here are some salient questions for discussion:

1) Do you consider bombing air-defense systems--troops, missile sites, and the like-- along with "clearly defined targets" by unmanned drones, "hostilities?" Or do you think that these actions are meaningfully distinct from hostilities? I am not asking for legal definitions, use whatever you think these words mean. If you answer describe your rationale for your definition.

2) Do you think there is an intentional use of words to downplay or minimize violent acts, such as dropping bombs and shooting people, when governments use words like "non-kinetic" (??) "suppression," and the most obvious, "enforcement of no-fly zones." Do you think that there is a meaningful distinction between these acts and acts you would normally consider part of "war" or armed conflict?

3) Are the President's actions legal?

4) Will Congress eventually support the Libyan operation?

Personally, I do not think this Libyan action is legal without congressional approval. I am also in principal against the President engaging in operations such as this one, absent a clear National Security Emergency, without the approval of Congress, or at the very least, outside the scope of the War Powers Act. Play games with the words all you want, I do not want any President bombing and blowing up stuff and killing people unilaterally for any extended period of time based on the President's own decision regarding what certain words mean.

On a more nuanced level, I have serious concerns with the trend to play games with the words "hostilities," "war," "no-fly zones," and so on. Just because I may "trust" or favor Obama more than, say, Bush, in my opinion no President, no matter how restrained or politically calculating, should be able to play games with these words or continue this dangerous game with words of war. (I have seen what Presidents I don't like can do under this precedent.) Semantics are being used to water down actions that should, reasonably, be considered actions characteristic of an armed conflict and therefore, "hostile" enough to be considered hostilities or war or whatever you want to call it. And if these words can be used to play games, we need to simply do away with the idea that the word "war" is actually useful anymore in this day and age. (It might very well not be, considering its manifest propagand-ization, to coin a phrase, in various "wars" on poverty, drugs, and terrorism, and so on.)

For the tl;dr crowd: Obama says he can bomb stuff and maintain a support role in the Libyan operation without congressional approval. Some members of Congress disagree. Is this a dangerous precedent to set and/or who do you think is right?

DISCUSS!

 

[Cutlass]

I think everyone has played fast and loose with the WPA as long as it's been on the books. And I don't see that ending.

 

[illram]

Maybe so, but does that excuse it here? I don't think so.

 

[Junius]

Well to my knowledge no president has ever accepted the constitutionality of the War Powers Act. Even those, like Obama, who came from the Senate. Gotta say this will be an interesting test case. Don't know if they will have the votes in the Senate to cut off funding though, which will render all of this moot. Would have been better to get authorization right away though. Almost certainly would have got it if all he wanted to do was bomb.

 

[Stegyre]

I agree with Cutlass (interpreting "everyone" as "the Legislative and Executive Branches").

Moreover, I think this is a political dispute, which the courts will throw out. If Congress wants to stop military action, it has a very ready means to do so. I believe it's called "the power of the purse." (At least, that's what my wife calls it.)

 

[bhsup]

Congress needs to be careful here. The reason everyone has always played around the WPA is because there's a good chance it'll get nixed if it ever goes before the Supreme Court.

EDIT: Or... yeah, what stegyre said.

 

[SuperJay]

Nice job putting together a solid OP, Illram.

Unfortunately I don't feel that I'm informed enough about the current U.S. involvement in Libya to comment on the specifics or the applicability of the War Powers Act. I do, however, agree that the euphemisms are out of control and dangerous. Sadly, that's just politics as usual.

 

[illram]

While the lawsuit may indeed get tossed as a political question, I think it's a valid question as to whether the President should be able to unilaterally engage in acts that, arguably, are "war like" no matter how much one wants to quibble with the definition of "war." (I would argue this operation is very different from, say, the operation to kill Bin Laden or Bill Clinton's Tomahawk missile launch, or even Regan's air-strike some years ago. This is a sustained operation designed to assist a specific side in a civil war.)

After all Constitutionally--and a Constitutional scholar such as yourself, VRCW, should know this-- Congress has the following powers:

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

Obama himself has said the following:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Now to be fair, Obama is not the only one doing an about face. Mr. Defender of the War Powers Act, Speaker Boehner, has not been such a staunch ally of it in the past:

“Invoking the constitutionally-suspect War Powers Act may halt our nation s snowballing involvement in the Kosovo quagmire. But it’s also likely to tie the hands of future presidents … A strong presidency is a key pillar of the American system of government — the same system of government our military men and women are prepared to give their lives to defend. Just as good intentions alone are not enough to justify sending American troops into harm’s way, good intentions alone are not enough to justify tampering with the underpinnings of American democracy.”

Read more: http://www.politico.com/news/stories/0611/57014.html#ixzz1PSwYYHiT

He even voted to repeal it some time ago. Politics! Never let it get in the way of a valid question.

edit: @ the thread, I am not as interested in the legality of the war powers act as much as I am in the policy of allowing a President to do something like this unilaterally. Is it wise to allow a President to engage in something like Libya unilaterally? (International support notwithstanding.)

 

[bhsup]

Oh, I pretty much agree with you, Illram. I was just pointing out that the SC is probably more likely than not to strike down the WPA if it gets to them, so Congress needs to tread lightly here.

 

[illram]

Why do you think so? Do you think it usurps the President's role as Commander in Chief?

 

[timtofly]

isn't this just a liberal versus conservative debate? The President is being liberal in yes, we will provide the support neccessary to resolve the issue as soon ASP. The conservative does not want to divert too much money while we are struggling at home.

I understand that anyone in control of said branches can "feel" what is best for the country. For the time being the price of oil has stabilized and starting to feel less tight. The economy may be affected by a prolonged usage of the military, but the military and keeping it involved in anything is not bad, unless it starts to draw too much of the budget.

I think any knee-jerk reaction now would not help US one bit.

 

[bhsup]

Why do you think so? Do you think it usurps the President's role as Commander in Chief?

I honestly can't decide if it does or not. But I do think that the current Supreme Court probably would see it that way.

That said, I think they're picking a bad one to go to the mat with. We're working in conjunction with NATO allies and are not even in a leadership role in this one. Also (while this doesn't really mean squat to me personally, it seems to with a lot of others for some reason) there is a UN stamp of approval on these operation.

Basically what I'm trying to get at is that this isn't Obama just invading (random pick) the Azores to annex them into the USA without Congressional approval. This is a multinational effort with our permanent allies in NATO with strong international support. I get why they, letter of the law wise, Congress is doing this, I'm just saying it isn't the politically smartest thing in the world for them to do. They're bucking the Commander In Chief on military matters over an operation that has widespread support. They're gonna lose.

 

[MagisterCultuum]

He stepped outside the bounds of the law, and the law gives more power than is constitutional to the executive anyway. The president has command of the military and the right to use it in emergencies when there is no time to convene congress for a declaration of war, but the president always takes long enough to act that there is no excuse not to get a declaration from Congress first.


Furthermore, the actions in Lybia are clearly not for self defense but merely an instrument of national policy. That automatically makes the actions illegal under the Kellog-Briand Pact.

 

[Junius]

I honestly can't decide if it does or not. But I do think that the current Supreme Court probably would see it that way.

That said, I think they're picking a bad one to go to the mat with. We're working in conjunction with NATO allies and are not even in a leadership role in this one. Also (while this doesn't really mean squat to me personally, it seems to with a lot of others for some reason) there is a UN stamp of approval on these operation.

Basically what I'm trying to get at is that this isn't Obama just invading (random pick) the Azores to annex them into the USA without Congressional approval. This is a multinational effort with our permanent allies in NATO with strong international support. I get why they, letter of the law wise, Congress is doing this, I'm just saying it isn't the politically smartest thing in the world for them to do. They're bucking the Commander In Chief on military matters over an operation that has widespread support. They're gonna lose.

On the other hand this war is losing support quickly. http://www.rasmussenreports.com/public_content/politics/general_politics/june_2011/just_26_favor_continued_military_action_in_libya

 

[Stegyre]

I like your posts: informative and well-reasoned.

While the lawsuit may indeed get tossed as a political question, I think it's a valid question as to whether the President should be able to unilaterally engage in acts that, arguably, are "war like" no matter how much one wants to quibble with the definition of "war."

This:

Politics! Never let it get in the way of a valid question.

It's a profoundly unsatisfying answer, but it also (imho) goes to the heart of why something like this is aptly described as a "political question." It's for the Legislative Branch to debate, and as is the typical case, the debate is largely driven by party affiliations, rather than substance.

Who gets to decide what the Constitution means?
A document for the governance of 300+ million people is decidedly not a matter of private interpretation.

For non-political questions, SCOTUS is the final decider. For everything else, we have this man. (could . . . not . . . stop . . . self )

For the political questions, it is the two political branches, and the Judicial Branch (both wisely and appropriately) stays waaaaaay the way out of it! I'm of a mind to do so myself.

FWIW, here's my reasoning: "a bipartisan group of US lawmakers" has no more authority to interpret the Constitution on this question than I do. Get enough legislators to actually do something, and they do de facto have the power to do so.

Considering the difficulty of organizing such group action, I'm actually quite willing to live with that result, because it means that a significant number of law makers (often backed by competing interests) reached substantially the same conclusion on a very important question. (That's better than the 5:4 majority by which SCOTUS is able to resolve constitutional questions, if you think about it.)

This is a positive (as opposed to normative) approach to constitutional interpretation, but if we were going to use a normative approach, might we not just as well ask, "When a foreign people rise up to oppose a venal dictator, should we not give them some reasonable assistance?"

 

[Patroklos]

Its a clear violation of the law. The distiction of "full hostilities" is irrelevant as the WPA doesn't distiguish by degrees, it just says hostilities which covers them at any level. Using that line anything short of nuclear weapons could be argued as not "full hostilities."

I like the war powers act because it gives each side the room it needs to follow through with their Constitutional duties. The President has the freedom the react quickly to certain situations militarily, Congress gets a hard coded date where it must provide approval. 90 days is more than enough to execute actions like punitive air strikes and special forces raids without getting locked up in beauracratic red tape which is generally how Bush and Clinton used it for their various minor actions in places like Yemen and Sudan.

For all the talk of Iraq being an illegal war, Bush did in fact get approval from Congress for both Iraq and Afghanistan the lack of which being the only legal way to consider either illegal wars. Obama is being the ultimate hypocrite here.

 

[Cutlass]

Maybe so, but does that excuse it here? I don't think so.

IF, we were dealing with original intent or the formal letter of the Constitution, then I have to agree with you that Obama can't use the military in this way without Congressional approval.

That said, I don't think the US government has abided by the Constitution on the issue since the start of the Korean War. And I think there may well have been plenty of times before that as well when the Constitution wasn't really followed formally when the military was used. There hasn't been a decade since the 1830s when the US Marines didn't see combat, for instance. And there's only been a handful of actual formal wars in all those years.

So while we have a breech of the formal Constitution, and the War Powers Act, we also have business as usual as far as what the government actually does.

The situation is that the precedent of 180 years, at least, is at odds with the letter of the Constitution. This is not new.

So the Constitution is not on Obama's side. But near 2 centuries of precedent is.

The rest, it may be bipartisan, but really in name only. 80% of this is partisan politics. And there is no escaping that.

 

[Camikaze]

I think question 2 is a very important one. It may not be deliberate or conscious in this or any other given case, but it's indicative of the acceptability of the language to whoever's using it to describe violent acts. That is, it shows that it has become acceptable to describe war in non-violent terms. To beautify war, making this clearly a question of legality rather than morality. That's probably a widespread and systematic issue, and I offer no solution!

Regarding the question of whether action is legal or not; firstly, domestic legitimacy matters much less to me, as a foreigner. But by the looks of things it would not be entirely legal, and I certainly agree that the precedent being set is bad. I support the action in Libya, but I don't think it should be dressed up as anything other than 'hostilities'. And if congressional approval is necessary where 'hostilities' exist for more than 90 days, then yeah, I'd say that congress should be asked. That I agree with this individual action is irrelevant to the precedent it sets or continues; if international unilateralism isn't a good thing, then surely domestic unilateralism isn't either. That said, maybe Congress is going about this the wrong way. This would just appear to be political, even if bipartisan. I thought Libya had a fair degree of bipartisan support (in general if not in details), so this seems more about embarrassing Obama than actually making a point about the precedent this sets or even the action in Libya itself.

Also, I'd be curious to know where/if the UN comes into the question of legality. The US has signed up to the UN, and the UN has approved action. Does that make it at all different legally?

 

[Cutlass]

Also, I'd be curious to know where/if the UN comes into the question of legality. The US has signed up to the UN, and the UN has approved action. Does that make it at all different legally?

No. The UN is a forum for diplomacy. It is not a governing authority. It has no legitimacy of action except what the member nations cede to it.

 

[Camikaze]

No. The UN is a forum for diplomacy. It is not a governing authority. It has no legitimacy of action except what the member nations cede to it.

But has the US already ceded to the UN's decision simply by signing up to it 60 odd years ago (remembering that they are free to withdraw), or is there still a need for full approval in each individual instance?