Libya, the Constitution, International Law and the War Powers Act

There is nothing wrong with being anti-war, per se. But like any other advocates, they lose credibility when they start claiming everything they don't like is illegal. Hail Mary passes may keep the noise machine going, but those don't advance the national debate. Plenty of influential figures in the anti-war movement, however, have done just that with respect to the intervention in Libya. They have pretended that some parts of the Constitution exist, others do not, and even more interestingly, these supposed advocates of international law and human rights have pretended throughout the conflict in Libya that neither actually matter or even, perhaps, exist.

Back in March, after the start of the operations in Libya, Rep. Dennis Kucinich had called the intervention an impeachable offense against President Obama, and I had to set him straight. In short, I had argued that primarily our international treaty obligations and secondarily the War Powers Act authorize actions in Libya. Now, Glenn Greenwald argues the President's actions are unilateral and never legal because of the War Powers Act. Apart from the absurdity of calling an action in support of a unanimous resolution of the UN Security Council and in a support role to NATO "unilateral," a simple reading of the War Powers Act provides that he is wrong. The section Greenwald specifically refers to reads the following way:
(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.
It certainly was a national emergency, given the US bases in the Middle East, and the fact that our embassy in Libya was evacuated under threat of attack, but Greenwald et al's focus on the third part ignores part (2), specific statutory authorization. It turns out that specific statutory authorization does exist to act in a situation like Libya, where force is used to enforce a UN Security Council resolution. Over at Another War of Jenkin's Ear, John Whitehouse explains that under the United Nations Participatory Act of 1945, 22 U.S.C. § 287d,
The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution, providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That, except as authorized in section 287d–1 of this title, nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.
Congress actually specifically found that using forces under orders from the Security Council is a peacekeeping and enforcement activity rather than act of war, and therefore the use of American forces within the defined parameters and missions of those actions neither violate the Congress' Constitutional prerogative to declare war, nor require specific Congressional authorization.

Congress and the legal community have long recognized that under the Constitution, the international treaties, alliances and obligations that we become part of pursuant to provisions of the US Constitution are in and of themselves legally binding, and along with the body of the Constitution itself, become the supreme law of the land. As I explained in my piece back in March, the supremacy clause of the US Constitution reads as follows:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The UN charter is of course one such treaty, ratified by the US Senate, pursuant to the Constitution. There is also another treaty obligation involved here, other than the UN Charter. It's called the North Atlantic Treaty Organization, commonly known as NATO. This is significant because whether or not the War Powers Resolution applied to Libya at the time US forces first began enforcing the Security Council resolution, within a little more than a week, the command of the mission turned over to NATO, and the US relegated itself to a support role. As the President wrote in his letter to Congress on May 20,
The initial phase of U.S. military involvement in Libya was conducted under the command of the United States Africa Command. By April 4, however, the United States had transferred responsibility for the military operations in Libya to the North Atlantic Treaty Organization (NATO) and the U.S. involvement has assumed a supporting role in the coalition's efforts. 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. .
For those who are claiming that a War Powers Act 60-day deadline was at stake on Saturday (60 days from the President's original letter informing Congress of US action in Libya), I suggest that they are missing a critical point that the very nature of US involvement has changed. The mission which the President wrote to Congress in March about has, effectively, ended. The new US involvement, under NATO command, is a different beast entirely, and it's not at all clear that the War Powers Act applies to that mission, where the US is playing a support role.

Those who are ready to demand the President's head over this 60-day period, before which the specific mission arguably ended, are also ignoring that even if the War Powers Act applies, the President's letter on Friday would trigger a 30 day extension even under the War Powers Act.

The US Justice Department has held a long-standing view that the War Powers Act cannot Constitutionally restrict any and all orders the President issued to the military, no matter how limited, given the President's Constitutional authority as Commander-in-Chief and his unique authority to conduct foreign policy. Interpreting the War Powers Resolution in a way to severely restrict both the President's Commander-in-Chief authority and his authority to conduct foreign policy with the parameters of established and Constitutionally approved treaties to which the United States is a party can quite reasonably be considered unconstitutional encroachment on the President's Constitutional authority.

There is something between a hapless, powerless president and a unilateral executive. I know it is an uncomfortable place to be in to not be able to claim either that the President is all powerful and can do anything he wants with the military or that he is all powerless and has no inherent Constitutional authority to authorize force even in support of our treaty obligations. But the truth is that the President is neither all powerful nor all helpless. The Congress, however, is also given a tool in the Constitution to be the ultimate arbiter with its control of the purse-strings, should it choose to exercise it.

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