A Divided Mind and Heart: Is the Use of Force in Libya Constitutional?

Co-written by Jessica Payne & Jyoti Jennings, Associate Editors

The 2011 Libyan Revolution

In February 2011, major political protests began in Libya against Libyan ruler Muammar Gaddafi’s repressive government. Gaddafi came to power in 1969 after overthrowing the Libyan monarch in a coup and has held that power for 42 years.1 Gaddafi’s regime is characterized by heavy censorship, with 10-20 percent of Libyans working in the surveillance sector. Execution is the punishment for forming a political party, and it is a crime to speak with foreigners on political matters.2 In fact, foreign languages were removed from school curricula.3 Gaddafi has also been denounced for encouraging, and likely sponsoring, terrorist acts worldwide. In 2009, Gaddafi addressed the United Nations in New York, defending the Taliban and Somali pirates.4

The early 2011 protests in Libya soon escalated into an armed conflict, with rebels establishing a coalition named the Transitional National Council and based in Benghazi, a major Libyan city.5 These protests grew in size and momentum despite harsh repression from the Gaddafi regime and the subsequent slaughter of protestors. Gaddafi is said to have declared war on his own people, resulting in heavy death tolls and the resignation of many of his key government officials. His remaining supporters include some of his sons and loyal generals.6  He also has apparently hired many mercenaries, and is reportedly advertising for more.7

As the civil war intensified in early 2011, Gaddafi lost more and more control to the uprising coalition. U.S. Admiral James Stavridis, NATO’s Supreme Allied Commander in Europe, told the U.S. Senate that intelligence reports had suggested “flickers” of an al-Qaida or Hezbollah presence within the rebel movement.8 However, the uprising force claims it wants to implement a government that will hold free and fair elections. Also, reportedly, the rebels are composed primarily of civilians, such as teachers, students, lawyers, and oil workers, and a contingent of professional soldiers that defected from the Libyan Army and joined the rebels.9

Operation Odyssey Dawn & Operation Unified Protector

Operation Odyssey Dawn was the U.S. code name for an international military coalition focused on Libya.10 On March 17, the United Nations declared a no-fly zone in Libya, one of a series of measures intended to protect the country’s civilian population. On March 19, enforcement of the U.N.’s resolution began with 19 planes from the French Air Force leading a strike against Gaddafi forces. That same day, U.S. and British forces struck with missiles from naval ships and submarines as well as air strike bombings.11

These operations continued under the command of the U.S. until March 25 when NATO announced that it would be taking over the command of the no-fly zone operations. Operation Odyssey Dawn now only refers to the U.S. involvement, and the international coalition under NATO’s command is termed Operation Unified Protector.12

Arguments Against and For Obama’s Actions Under the U.S. Constitution

CONBAMA

President Obama’s commitment of the U.S. Armed Forces in Libya without Congressional consent is unconstitutional.  Article I, section 8 of the U.S. Constitution gives Congress the right to declare war.  Article II, section 2 assigns the President of the United States the responsibility of being the Commander in Chief of the Armed Forces, which means the President decides how war is carried out.13  From an originalist perspective, by splitting the war powers between the Legislative and Executive branches, the founders intended to split the decision of committing the armed forces into conflicts between the branches, whether or not war is declared.

As a presidential candidate in 2008, during the Russian invasion of Georgia, President Obama expressed how important he felt it is to work with the U.N. and the international community as a whole to end the conflict, and as President, his entire foreign policy emphasizes diplomacy and cooperation with the U.N.14  President Obama further demonstrated his commitment to the U.N. Security Council by threatening to send and then actually sending armed forces to Libya.15 USD School of Law Professor Maimon Schwarzschild, a former journalist and authoritative constitutional debater,16 speculated that President Obama is against unilateral use of force in general,17 but he felt justified in sending the armed forces to Libya because of the international impetus and the U.N. involvement. Even before the U.N. passed a resolution authorizing force to protect Libyan civilians, the 22-nation Arab League stringently called for U.N. intervention.18 However, in Reid v. Covert, the Supreme Court interpreted Article VI, clause 2, about “treaties made under the Authority of the United States,” to mean that the Constitution supersedes even treaties properly made by the President ratified by the Senate.  In other words, the Executive and Legislative branches cannot do by treaty with a foreign power what they could not do under the Constitution.19  Based on President Obama’s statements and actions, it appears that he is using the NATO and U.N. treaties to justify committing forces, which he could not independently do under the Constitution. 

Thus the War Powers Resolution of 1973 (“WPR”) Is Constitutional

If, as asserted above, the Constitution is interpreted to require consent from Congress in order for the President to “use force,” the WPR is merely enforcing that requirement of consent and is arguably constitutional.  Article I, section 8 states that Congress has the power to “make all laws which shall be necessary and proper for carrying into execution foregoing powers,” and, arguably, this is what the WPR is doing. In fact, most Presidents since 1973 have conferred with Congress before sending in troops, even though they did not actually have to ask permission because the use of force was within their constitutionally allocated powers.  The only exceptions are when President Clinton sent troops to Kosovo under NATO in 1999 and now when President Obama sent troops to Libya to enforce NATO’s commitment to the U.N.’s resolution.

Another constitutional point that potentially supports the WPR is the idea that there needs to be a check on the President’s power because we do not want the President to be able to send in troops on a whim. The argument that Congress can use other powers, in particular Congress’s control of funding, to reign in the President in such a situation may not be viable because it would likely be political suicide for members of Congress. Congress could not really put an end to the President’s use of force by cutting off funds because this would effectually cut off funding from American soldiers in the field. Rightly so, Congress would be extremely reluctant to do this, and the President’s use of force would be allowed to continue.

The WPR requires that the President withdraw troops after 60 days unless Congress has declared war, granted an authorization or extension, or cannot meet the deadline because the U.S. is under an armed attack. The WPR does not allow the President to commit troops indefinitely unless there has been formal authorization by Congress, and so it is a more balanced decision because it does not depend on the choice of just one person (the President). Therefore, the restrictions and time limits imposed by the WPR are necessary to preserve a proper balance of the separation of powers envisioned by the Constitution overall.

PROBAMA

President Obama’s commitment of U.S. Armed Forces in Libya without Congressional consent is constitutional because, for one thing, as “FrancescoFemia” commented on a Huffington Post article, President Obama’s commitment of armed forces in accordance with the U.N. to Libya “is not unilateral. It is one of the most multilateral military actions in recent memory.”20  Furthermore, the President cannot sign a treaty unless two-thirds of the Senate votes to ratify it, and thus Congress already gave its approval to commit troops under NATO.  NATO is a military alliance started in 1949 to protect the member countries from outside aggressors. NATO’s current members mostly consist of Western European countries, Canada, and the U.S.  The U.N. was also formed after World War II in 1945, but its 192-country membership includes all but three sovereign countries in the world.  While NATO is primarily a military alliance, the U.N. was designed to “contain conflicts and restore peace and stability around the globe” and has no peacekeeping forces of its own.21

In addition to the international impetus to protect Libyan citizens, the Commander in Chief fundamentally has sole discretion to send the Armed Forces into a conflict (Art. II, sec. 2), as stated by every President since Reagan.  This balances the Executive branch against Congress’s powers of allocating funding, raising troops, and deciding whether to declare war (Art. I, sec. 8).  Congressional funding is a check on the President’s war power because without funding support, the President cannot practically continue a war.  Although politicians may fear being politically unpopular, they should have the backbone to stand up the President fiscally.21

Besides, the concern that there needs to be a check on the President’s power to commit troops, lest the President act on a whim, has not really been a problem because in recent history there have not great schisms between the President and Congress over committing troops. Although President Bush Jr. and Sr. had deeply bi-partisan Congresses, both Congresses approved the President in sending troops to Kuwait and Iraq by narrow margins.  As Professor Scwarzschild noted, “If there was ever a situation when Congressional members of the opposing party would want to frustrate the President’s plans, that was it.”  Professor Schwarzschild also observed that it is likely that Congress would have agreed to President Obama’s sending troops into Libya as well if Congress had been asked, but some Presidents may not ask because they do not want to give a forum to opposition. Because Congress would likely approve intervention to protect Libyan citizens anyway, it is possible that this is why President Obama did not request permission from Congress.

Additionally, President Obama acquiescing to NATO and the U.N. Security Council is not unconstitutional because 1)the President  is authorized to commit troops as Commander in Chief, 2) Congress has already given consent to commit troops by ratifying the NATO and U.N. treaties, and 3) Congress does not need a check on the President’s power to commit troops because it has other war powers and in recent history has always supported the President’s commitment of troops. 

Thus the WPR Is Unconstitutional

If the Constitution allows the President unilateral power to use force, the WPR is decidedly unconstitutional. Essentially, according to this interpretation, the WPR uses a legislative act to restrict the powers of the Executive branch (the President)—which is, of course, not okay because then Congress would be able to re-allocate the powers granted by the Constitution. If this were allowed, the entire system of “separation of powers” among the three branches of government would be undermined, Congress would basically reign supreme, and the Constitution would essentially be thrown out the window.   

Furthermore, the WPR has flaws that make it unsuitable as a proper “check” on Presidential power anyway. The 60-day deadline imposed on the President essentially lets him do whatever he wants for 60 days, so it incentivizes the President to try to win the war within that time span. This can lead to serious errors in strategy and larger casualties. It could also incentivize enemies to “hold out” because, as Professor Schwarzschild points out, “after 60 days, the United States turns into a pumpkin,” and the President has to withdraw forces unless Congress gives authorization.

Though the WPR has not formally been struck down, Congress did not enforce the WPR when President Clinton committed troops in Kosovo or during President Obama’s current commitment, perhaps because of the controversy surrounding its constitutional and effectual flaws. 

The Authors Think . . .

First, the flaws in the WPR make it unacceptable no matter whether the President’s use of force is constitutional or not. As for the constitutionality of the President’s power to commit troops in general, we certainly sympathize with Professor Schwarzschild’s “divided mind and heart.”23 However, though there are arguments for both sides, we lean towards the viewpoint that Presidential power to commit troops is constitutional.  We tend to agree that the power over the purse is Congress’s check on the President in this area. Besides, without the political support of a majority of Congress and the people, the President can be impeached and removed. There should ideally be an understanding between the President and Congress; however, to require Congressional authorization for every troop commitment would result in the Legislative branch having all the power in matters of war. Shrinking Executive power to such an extent is inconsistent with an essential theme of the Constitution: a balanced separation of powers among the three branches of government. Therefore, the President should have this power under the Constitution.

1 Kira Salak, Rediscovering Libya, Nat’l Geographic Adventure, Apr. 2005, available at http://www.kirasalak.com/Libya.html.

2 Mohamed Eljahmi, Libya and the U.S.: Qadhafi Unrepentant, 13 Middle E. Q., no. 1, 2006 at 11, available at http://www.meforum.org/878/libya-and-the-us-qadhafi-unrepentant.

3 Libya in Fragments: A New Flag Flies in the East, The Economist (Feb. 24, 2011, 8:08 PM),  http://www.economist.com/blogs/newsbook/2011/02/libya_fragments.

4 Neil MacFarqhuar, Libyan Leader Delivers a Scolding in UN Debut, N.Y. Times, Sept. 23, 2009, available at http://www.nytimes.com/2009/09/24/world/24nations.html?_r=1.

5 Anne Barker, Time Running Out for Cornered Gaddafi, ABC News (24 February 2011), http://www.abc.net.au/news/stories/2011/02/24/3147195.htm.

6 Andrew McGregor, Can African Mercenaries Save the Libyan Regime?, The Jamestown Foundation (Feb. 23, 2011, 5:07 PM), http://www.jamestown.org/ (search “Andrew McGregor”; then follow “Can African Mercenaries Save the Libyan Regime” hyperlink)

7 Tuaregs Join Gaddafi’s Mercenaries, BBC 4 (Mar. 2011), http://www.bbc.co.uk/news/world-12647115.

8 Robert Winnet & Duncan Gardham, Libya: al-Qaeda Among Libya Rebels, Nato Chief Fears, Daily Telegraph, March 29, 2011, http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8414583/Libya-al-Qaeda-among-Libya-rebels-Nato-chief-fears.html.

9 Bobby Ghosh & Abigail Hauslohner, Libya’s Ragtag Rebels: Why They Fight,  Yahoo! News (Mar. 24, 2011, 12:00 PM ET), http://news.yahoo.com/s/time/08599206111100.

10 Jim Garamone, Coalition Launches Operation Odyssey Dawn, U.S. Dept. of Defense: American Forces Press Service (Mar. 19, 2011), http://www.defense.gov/news/newsarticle.aspx?id=63225.

11 Gunfire, Explosions Heard in Tripoli, CNN News (Mar. 19, 2011), http://articles.cnn.com/2011-03-19/world/libya.civil.war_1_misrata-missiles-fighter-jets?_s=PM:WORLD.

12 NATO No –Fly Zone Over Libya – Operation Unified Protector, North Atlantic Treaty Alliance, 1 (Mar. 25, 2011), http://www.nato.int/nato_static/assets/pdf/pdf_2011_03/20110325_110325-unified-protector-no-fly-zone.htm.

13 J.B. Williams, Obama Attacks Libya and Where’s Congress?, American Thinker (Apr. 19, 2011), http://www.americanthinker.com/2011/03/obama_attacks_libya_and_wheres.html.

14 Lou Dobbs Tonight, CNN News (Aug. 8, 2008, 7:00 AM),  http://transcripts.cnn.com/TRANSCRIPTS/0808/08/ldt.01.html.

15 Obama – “U.N. Resolution Enforced Through Military Action” if Necessary, CBS News (Mar. 18, 2011), http://www.cbsnews.com/video/watch/?id=7360089n.

16 Audio file: What Would the Framers Have Thought of Direct Democracy?, Second Annual Western Conference, held by the Federalist Society for Law and Public Policy Studies (Feb. 23, 2008), http://www.fed-soc.org/publications/detail/what-would-the-framers-have-thought-of-direct-democracy-event-audiovideo.

17 Doug Mataconis, Candidate Obama vs. President Obama on the Use of Military Force, Outside the Beltway (Mar. 18, 2011), http://www.outsidethebeltway.com/candidate-obama-vs-president-obama-a-message-on-the-use-of-military-force.

18 Colin Freeman, Nick Meo, & Patrick Hennessy, Libya: Arab League Calls for United Nations No-Fly Zone, The Telegraph (Mar. 12, 2011), http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8378392/ Libya-Arab-League-calls-for-United-Nations-no-fly-zone.html.

19 Reid v. Covert, 354 U.S. 1 (1957), available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354_0001_ZO.html.

20 David Wood, As Libya Air Strikes Intensify, What Next for the United States?, Huffington Post (Mar. 20, 2011, 3:21 PM), http://www.huffingtonpost.com/social/MAX1/libya-air-strikes-what-next-gaddafi-us_n_838131_81410904.html.

21 Ali Abdussalam Treki, President, U.N. General Assem., President’s Message at UN Day Concert (Oct. 23, 2009), available at http://www.un.org/en/events/unday/2009/gapresmessage.shtml.

22 Gene Healy, The Power of the Purse, Cato @ Liberty (Jan 9, 2007, 11:38 AM), http://www.cato-at-liberty.org/the-power-of-the-purse/.

23 Interview with Maimon Scwarzschild, Professor of Law, Univ. of San Diego Sch. of Law (Apr. 8, 2011).

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