Yes, The Libyan War Is Illegal

By Daniel Larison • May 12, 2011, 1:52 PM

While one can debate the degree to which the presidency is imperial, it’s simply untrue that the war in Libya is illegal in any shape, manner, or form. It’s being conducted under the auspices of both the UN Charter and the North Atlantic Treaty, which rather covers it internationally. ~James Joyner

As far as the North Atlantic Treaty goes, this is false. The North Atlantic Treaty has nothing to do with what is taking place in Libya. The war is not being fought to fulfill obligations under that treaty, and NATO is not participating in the Libyan war because of the treaty. Indeed, there is no way that a treaty that created a defensive alliance could be used to authorize an attack on a state that did not attack any member of the alliance. At best, NATO is acting as the institution through which member governments are enforcing a Security Council resolution.

As far as U.S. law is concerned, this is also wrong. The President has no authority under the Constitution to do what Obama has done in Libya. The Libyan war doesn’t even have the ridiculous Clinton administration excuse of “implicit authorization” through a vote for funding the war, and to this day the Libyan war continues to be funded out of the Pentagon’s current budget. The Constitution did not vest the President with the power to start a war against another state (or anyone else) on his authority. This is the very sort of arbitrary war that the Framers sought to avoid. War powers were not ambiguously divided. They were very clearly divided. Since WWII and especially since Korea, the divisions have been blurred by executive usurpation and Congressional surrender, and members of both parties have been happy to collaborate in this blurring when the executive was under their party’s control. The fact that Congress has completely failed to check the executive in this matter doesn’t make Obama’s actions legal. It just means that there will apparently be no attempt to hold him accountable for his illegal war.

Contra Andrew, the war was illegal from the start. There wasn’t a time in March when it was legal, but then became illegal later. Obama has abused the authority given to him as Commander-in-Chief. It doesn’t cease to be an abuse of power because Congress and the public are indifferent. What that means is that Obama will evidently get away with his illegal actions.

19 Responses to Yes, The Libyan War Is Illegal

huckfinn says:

May 12, 2011 at 4:20 pm

By your definition, hundreds of military actions since WW II, maybe all of them, have been illegal. Why single-out the Libya intervention?

It is certainly not a black and white issue, as you present it to be. Presidential military actions have been challenged in the courts many times, and the courts have upheld that the President was in compliance with the War Powers Act.

So…. what the heck standing do you have for calling military actions like Libya “illegal”? The opinion of the courts is determinative, not yours.

Maybe your strict interpretation of the constitution is wiser, better policy. I agree with you that it would be better if all military actions were treated as “wars”, and Congress had to approve in a manner prescribed by the War Powers Act. But you are factually incorrect to throw around the word “illegal”.
IanH says:

May 12, 2011 at 4:51 pm

This war is illegal. End of story.
cfountain72 says:

May 12, 2011 at 6:08 pm

“The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war [and] the power of raising armies. A delegation of such powers [to the president] would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.”
-James Madison

http://www.fff.org/comment/com0204a.asp

Because Congress is too damn lazy to enforce their prerogative, does not make it any less illegal. It just means it’s not being enforced. If the Supreme Court is unable to read and interpret the simple war language of the Constitution, then they are not doing their job either. Bear in mind that the decisions of even the Supreme Court are not written in stone, and can be changed from time to time. Certainly the court that ‘discovered’ that the Commerce Clause covers the growing of plants in your back yard is of a different mind than the Court that was sitting 100 years earlier.

I would, however, be curious to learn more about the many times “Presidential military actions have been challenged in the courts…and the courts have upheld that the President was in compliance with the War Powers Act.”

Peace be with you.
Skipjack says:

May 12, 2011 at 7:32 pm

If you feel so strongly that the President’s actions are unconstitutional, why don’t you go ahead and try to get a federal court order restraining them? That would settle the question for you.

Go ahead and sue, and as for standing, just say you are a concerned citizen of these United States. Do you know of any plans to seek redress from the courts or at least seek a definitive ruling as to the legality of the President’s actions in regards to Libya?
cfountain72 says:

May 12, 2011 at 7:39 pm

That actually is an interesting thought. Wish I had the money to do something that…I’ll look around to see if anyone’s ever done anything like that before.

Thanks!
huckfinn says:

May 12, 2011 at 11:52 pm

I did some research on this issue, and it is far more complicated than I thought. The War Powers Act really is a legislative affirmation/realization of the constitution. The problem is that presidents have ignored it, claiming it is unconstitutional. (Nixon tied to nip it in the bud with a veto)

Many legal challenges have be made by congress and others, trying to force presidents to comply, but the courts have refused to issue any opinion, other than a couple inconclusive statements. So the courts have only implicitly assented to presidents sending troops into action without congressional authorization.

I would stand by my statement that the Libyan War is legal – at least until some court decides otherwise.

http://www.americanforeignrelations.com/E-N/Judiciary-Power-and-Practice-The-war-powers-resolution.html
huckfinn says:

May 13, 2011 at 12:00 am

http://www.nytimes.com/2011/05/13/world/africa/13powers.html
This is a great article on the legal gymnastics the Obama Adminstration may pursue to circumvent the War Powers Act.

I think we should just avoid the murky swamp of legality. It is unenlightening. Better to just talk about whether the policy is wise.
cfountain72 says:

May 13, 2011 at 4:20 am

Thanks for the links. But if this action was ‘legal’ what difference would the policy make? Essentially, this means a president can start any war they want and the legislature is powerless to stop him. The best we could hope is that he would get voted out, but a lot of war can be waged in the course of four years.

Essentially, you are describing an elected king, which is surely not what we are designed to have. Supporters of the ‘legal’ argument often point to precedent as justification. But this just means the people and their representatives have not pushed the issue. I have to believe that if enough Americans woke up from their war zombie stupor, Congress would act. As it is, our ambivalence becomes their ambivalence.

Peace be with you.
tbraton says:

May 13, 2011 at 6:34 am

“I think we should just avoid the murky swamp of legality. It is unenlightening. Better to just talk about whether the policy is wise.”

While the decision to go to war is basically a political decision (the Constitution places no limits on Congress’ power to declare war), the situation in Libya is complicated by the fact that the Obama Admnistration is openly violating the Constitution and the War Powers Resolution of 1973. Thus, we have a legal problem on top of a political problem. That’s why I am so surprised that no leading Republican contender for 2012 (apart from Michele Bachmann) has not grabbed the lead on this issue. It seems that a lot of political capital could be acquirred with an increasingly war-weary American public by a Republican politician bold enough to attack Obama for getting us involved in a war against a country that had not attacked the U.S. or one of our allies, where no vital national interests of the U.S. were involved, and where the Constitution was being flouted. Obama would then have to explain why he took an entirely different position on the President’s right to take us to war as a U.S. Senator than he took as U.S. President.
cfountain72 says:

May 13, 2011 at 8:21 am

tbraton,

Your point is well taken, but sadly I think we know at least one reason most candidates (and even some Senators) are reluctant to call Obama out on Libya: they might want to do the exact same thing if they become President!

Also, there is a strange code amongst some Republicans (maybe some Dem’s too?) whereby you aren’t supposed to question the Commander in Chief in times of war. It runs against the core principles that the country was based on, but there it is….

“First and foremost, I am supporting the president because he is Commander in Chief and he has taken the United States to war. He didn’t take the Obama administration to war, or the Democratic party, or (many) liberals. He has taken the country to war – my country, our country. If we have disagreements – and believe me, I’ve got a ton – they can wait until after the war is over and won.”

http://rightwingnuthouse.com/archives/2011/03/22/why-im-supporting-my-president/

(As you can see, a reality-based foreign policy view has not reached some folks. I can’t help but wonder how far this deference would go. If we invaded say Brazil? Mexico? Canada? Where does it stop?)

Peace be with you.
cfountain72 says:

May 13, 2011 at 8:27 am

And yes, it is my contractual duty to point out another (now official) candidate who has been critical of the Libyan adventure before it even began…

http://www.youtube.com/watch?v=r-qm9U3X3EU
huckfinn says:

May 13, 2011 at 11:45 am

“While the decision to go to war is basically a political decision (the Constitution places no limits on Congress’ power to declare war), the situation in Libya is complicated by the fact that the Obama Admnistration is openly violating the Constitution and the War Powers Resolution of 1973. ”

You state this as obvious fact, but in the legal world, you are wrong. “Legal” is what the courts decide, not what seem correct.

Why do you single out Libya and Obama? This situation is no different from Reagan and Grenada, or a hundred other situations. Sounds like you are grinding a political axe.

The reason why I suggest we not debate what is “legal” is because it goes nowhere. Since you dislike Obama/Libya action, you stubbornly state (incorrectly) that the action is “illegal”. Maybe it should be illegal, in keeping with the spirit of the War Powers Act, but when people challenge these actions in the courts, the courts don’t object. So Libya-like actions are IN FACT legal.

I agree that the War Powers Act should be enforced by the courts. It is not.
conradg says:

May 15, 2011 at 12:30 pm

I’ve tried making this point here before, to no avail, but will try one more time.

Actions like this by the President are neither illegal nor unconstitutional – at least until the Supreme Court rules so.

The Constitution does not give Congress the sole authority to make war against other nations. It gives Congress the sole authority to create an army. Once created that army is given to the President to command, and he can decide how to use it. If he uses it improperly, Congress can take it away from him. Or they can impeach him.

What is generally not understood is that the framers of the Constitution were almost entirely against the idea of having a standing army, which they saw as the root of all evils (and perhaps for good reason). Therefore, Congress’ power to declare war was seen as the power to create an army when needed and let the President command it as he saw fit. When the war was over and the need for an army no longer existed, the army would be disbanded. So there would never arise a situation like Libya, because the US would not have an army to fight such a war without an act of Congress.

This all changed of course when the US decided to keep a permanent standing army, for the most part after the early disasters of the War of 1812. Since then, we have maintained a standing army at the President’s constant command, re-authorized by congress every two years. SO a declaration of war is no longer needed for the President to use that army as he sees fit to defend the country, and they have consequently become quite rare. That does not make it illegal or unconstitutional for the President to use the army without a declaration of war or even an authorization from congress. In fact, it is probably the War Powers Act that is unconstitutional, in limiting the President’s ability to use the army under his command. The constitution only authorizes congress to limit the President’s command of the military through budgetary means or impeachment.

Now, this is clearly a flaw in the Constitution that needs some sort of remedy by constitutional amendment. But until that is done, these kinds of actions are simply not unconstitutional. The President is merely exercising his constitutionally appointed command of the military. The problem is not with the President, but with congress’ creation of a standing army, which is why the framers of the Constitution were almost unanimously against it. But you will hear very few people suggesting that proper solution, which is either to disband our standing army, or to amend the constitution taking away sole command responsibility from the President.
cfountain72 says:

May 18, 2011 at 8:16 am

conradg,

This would seem to imply that, at least for two years, the President could drive his Army all over the place without repercussion? To say nothing of the Navy, which I don’t believe has the two-year rule listed.

Obviously, you’ve thought this through a great deal, but it seems like a loophole so diametrically opposed to the intent of the document, it’s hard to accept that this is correct.

Peace be with you.
conradg says:

May 18, 2011 at 1:50 pm

cfountain72,

No, a President who did that would probably be impeached. Whether he did it with army or navy wouldn’t much matter. Unless, of course, he had the political support for his actions.

As you might note, Presidents have sent soldiers into battle hundreds of times without any declaration of war. Like all politicians, they usually do it with some political support or at least the confidence that no on is going to get overly uspet about it. So in practice, Presidents do get away with this, precisely because it is constitutional, and the political fallout it more serious than the any legal penalty, such as impeachment.

You might remember that Reagan conducted a war against Nicaragua for years and got away with it, without any congressional approval, and even several congressional measures that tried to stop it – the Bolan Amendment, for example.

The intent of the framers is not terribly important, especially when they didn’t actually think this through. No one knows what their intent was in relation to a standing army, because they virulently opposed the very notion of ever having one. Unfortunately, they did not declare their intent in the Constitution, by limiting the President’s power to use the standing army as he wished. They probably naively assumed that no congress would ever put up with a President who used the military at his own discretion, and that such a President would be immediately impeached, or never dare do such a thing for fear of impeachment. Again, these guys were just ordinary people, not superhuman prophets and they got a lot of things wrong.

If the Framers’ intent were what mattered, the second amendment would apply only to members of state militias. This is related, in that their substitute for a standing army was to have state militias fully armed and ready to be called to duty by the federal government in the event that a declaration of war was made. That’s why the second amendment is worded as it is – “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.” The only point here was to ensure a national defense against foreign attacks, not to give every individual some personal right to own a gun no matter what. But that intent, which is clearly stated, is ignored, and the letter of the law is followed instead. Thus, the President’s power as commander in chief of the army allows him to use that army as he sees fit, unless Congress intervenes. Declarations of War are only meaningful as bills to fund a federal army, they do not limit the President’s command power of that army. It is merely assumed that a President will use that army as Congress intends, with political forces keeping him honest and the threat of impeachment for dereliction of duty being the sword over his head. There is no other provision for dealing with a President who expands his use of the army given to him by congress beyond their declared intent. And a standing army is given no description at all in the Constitution. They navy is also entrusted to the President’s command as well. The general assumption being that no congress would elect a President who would be so impudent as to disobey Congress’s intent (the original Constitution had congress elect Presidents).
cfountain72 says:

May 21, 2011 at 8:48 am

“As you might note, Presidents have sent soldiers into battle hundreds of times without any declaration of war…So in practice, Presidents do get away with this, precisely because it is constitutional…”

Sorry, but I’ve seen this one tossed about more times than I care to mention, and it flops everytime I read it. People speed every single day too, but that doesn’t make speeding legal, nor does it mean I can tell the officer who pulls me over, “People have been speeding for decades. Why can’t I do it?”

As a practical matter, yes, if Congress doesn’t enforce their prerogative (i.e. pull the President over) he/she can be said to have gotten away with it. But that’s not the same as saying it is legal.

I have read a handful of articles on this topic, but none mention this notion that because he is given an army, he can drive it anywhere he wants. You mention impeachment as an option, but what would be the basis for the impeachment if attacking another nation without declaration is not illegal? Finally, I reject the notion that the framer’s intent is immaterial. Why even bother with a written Constitution if the words don’t carry any meaning.

What are your thoughts on this article by Glenn Greenwald? http://www.salon.com/news/opinion/glenn_greenwald/2011/05/19/libya

Peace be with you.
conradg says:

May 21, 2011 at 4:22 pm

CF,

First, there is a law against speeding, there is now law stated in the Constitution forbiding the President from using the army in the manner he chooses. Please name it. Even under the strict reading of a Declaration of War by Congress, the President is still free to command the armies thus created in whatever manner he wishes. He is constrained not by any particular law, but by the Congress’ power to take the army away from him, stop funding it, or impeach him. There is no actual power given to congress to command the army once created. You may think this is reckless, and in some sense it is, but the founders had a basic trust in the relationship between the President and Congress over such matters. Just because the President can legally do what he wishes with the army, doesn’t mean he will. And if the President overreaches, the Congress can take away his army, defund it, or impeach him. This was assumed to be sufficient to keep the two branches on the same page. History has proven this false, but it was their thinking, and in their day it made complete sense.

Impeachment does NOT require any illegal activity on the President’s part. Congress can impeach a President for wearing the wrong color hat, one presumes, if they want to. It’s not something Congress is likely to do, just as the President is not likely to invade Uruguay if Congress declares war on Germany, but he well might if he decides its in our interests. And Congress can impeach him for that if they like also.

Again, the Framers’ intent is not immaterial, but it has to have at least some textual basis, and there is no text in the Constitution which describes tactical or strategic limits on the President’s use of the army he is given command of by Congress. That’s why they also required that any army be given funding for only two years at a time. If the President wasn’t using the army properly, its funding wouldn’t be renewed.

The only textual basis for your argument is the provision for a Declaration of War. But there is no legal basis for arguing that this Declaration limits the President’s use of that army once created. It is assumed that political and electoral pressures and the requirement to “consult” with congress is sufficient to ensure a well-directed military campaign. And with a standing army under the sole command of the President, it is assumed that he has been elected because he is trusted to use that army properly. Which is why Presidents have used the army hundreds of times without any formal declaration of war by congress. None of those acts are illegal or unconstitutional, they are well within the President’s prescribed powers as commander in chief. And this is nothing like speeding when no one is around to catch you. The President generally acts in the open when he uses the military, or at least informs congress about most secret operations. Congress is free to use its own powers to stop him if he acts in opposition to Congress’ will and consent, but they almost never even object.

In other words, we are talking about a balance of powers equilibrium, not some kind of strict speed limit law as you are making it out to be. The President is free to use the military as he sees fit, unless Congress raises major objections and uses its power to counter-balance the President’s. The limits on his power as commander in chief are not legal limits, but balance of power limits. I would certainly agree that in practice those limits are insufficient, but that is a flaw in the Constitution, not Presidents acting illegally. Impudently and imperially, yes, but not illegally or unconstitutionally.
conradg says:

May 22, 2011 at 2:06 am

As for Greenwald’s article, it of course points out Obama’s personal hypocrisy on this issue, but what it really says is that Obama was wrong when on the campaign trail, and once in office realized this and acted within his powers as Commander in Chief. Although it goes against my own political stripes, Cheney, Addington, Yoo, and Bush were all correct that the President’s power to use the military as he sees fits makes it legal and constitutional to do just about anything they like. The only constraints are political and funding. Obtaining congressional “authorization” is purely a political form of cover, not a legal necessity. declarations of war are merely a formality when a standing army exists.

And yes, this is not how the Framers would have intended Presidential power to be used, but they made no provision for a massive standing army as we have today spread across the globe with proclaimed interests in virtually every part of the world. The whole purpose of that army, fully authorized and funded by congress, is to give the President the power to act swiftly in his perception of the nation’s interests. That power is vested in him by the Constitution as commander in chief, and the military is funded and organized by congress to serve that purpose. This is indeed an imperial power not envisioned by the Framers, and something they were loathe to permit. But there was a lengthy debate at the Constitutional Convention over just this issue, and it was decided not to include any provision in the Constitution forbidding a standing army, even though most agreed it would be a terrible and dangerous idea for the Republic to invest that kind of power in the President’s hands. So it’s not as if the dangers of a standing army were not considered. Overt restrictions on the President’s powers over the army were not included so as not to limit the President’s ability to defend the nation, even if that left open the possibility of his abusing those powers. It was thought that congress’ control over funding and its power of impeachment would keep the President in check. And generally speaking, it has. The hundreds of uses of the military without overt congressional declarations of war (or even formal authorization) have generally had widespread support even within congress.

So basically Greenwald, like Daniel, is simply repeating a righteous canard when reflexively describing all Presidential use of force without a formal declaration of war or prior authorization as “illegal” or “unconstitutional”. It is the WPR that is likely unconstitutional. If challenged, I feel confident that the Supreme Court would strike it down. Certainly this Supreme Court would.
Justin says:

May 23, 2011 at 1:09 pm

Very interesting analysis, conradg. I always enjoy reading your comments. I wish Daniel would have had a more thorough debate with you.

Congress’ ability to declare war and raise an army are two separate points in the Constitution. Why do you believe the power to declare war was “seen” as the power to create an army? Is Congress not able to do both? Why is Congress’ power to declare war not relevant to whether or not the military is allowed to enagage in a battle?

My belief has always been the following:

1. Congress raises an army.

2. Congress declares war.

3. President manages the war.