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Libya and the Law

By Henry “Chip” Carey

In March, President Obama reported to Congress that U.S. involvement in Libya was “consistent with the War Powers Act.” The President subsequently decided that the legislation’s requirement that the United States be engaged in “hostilities” no longer applied to the U.S. effort because of the subsidiary role the United States was to play in the NATO-led mission. 

But the fact that U.S. forces have continued to drop bombs on the presidential palace and shoot Predator drone missiles certainly makes it seem pretty clear that we’re engaged in “military hostilities.”

And we’ve recently learned that several members of the Obama administration—including the acting head of the Office of Legal Counsel (OLC), which normally makes apolitical legal determinations, the Counsel of the Defense Department, and the Attorney General—have all taken the position that the United States is indeed engaged in “hostilities.” According to these sources, Obama must either withdraw support for the campaign or obtain Congressional authorization now that the original sixty-day deadline has been surpassed by more than a month. On the other hand, lawyers at the State Department and the White House have concluded that the United States—in its supporting the NATO mission to save lives in Libya—is not legally participating in “hostilities.” President Obama has concurred with this rather Orwellian and opportunistic judgment.

The Bush administration politicized the OLC by exercising undue influence over its legal opinions. The Obama administration has similarly politicized this office by substituting the President’s personal judgment for the legal guidance of the OLC—a rare occurrence.

What this situation lacks and so desperately needs is clear division of power, in which a disinterested party decides how to interpret the law. The White House Counsel and the State Department Legal Advisor have traditionally been legal advocates, not independent sources of legal interpretation. The U.N. Charter’s Article 2(4) prohibits “the threat or use of force against the territorial integrity or political independence of any state.” In the 1980s, when President Reagan wanted to provide military aid to the contras in Nicaragua, the U.S. planned to argue at the International Court of Justice that the aid did not constitute a threat or use of force against Nicaragua. Instead, the State Department’s Legal Advisor at the time, Abraham D. Sofaer, simply asserted the legality of the aid, and the United States then withdrew from the binding jurisdiction of the ICJ, rather than be present for a trial it would surely lose. Similarly skewed legal thinking was behind the Kennedy administration’s argument about the legality of the embargo of Cuba. State Department lawyer Abram Chayes found that the United States was not “blockading” Cuba, but asserting “quarantine” of Cuba during the missile crisis in 1962. Apparently a quarantine was not a threat of force under Article 2(4) of the U.N. Charter, while a blockade was a violation. The distinction had no difference in practice

Frustrated by the current Obama legal maneuvers, which essentially deny the jurisdiction of the War Powers Act, the U.S. House of Representatives symbolically voted on June 14 to cut U.S. funding for the war in Libya. The Senate has not and is not likely to follow suit. Senators John Kerry and John McCain introduced a bill granting the Administration limited authority in Libya, retroactive to March 19, pursuant to the War Powers Act. But earlier today, the House overwhelmingly rejected that measure, with 70 Democrats joining a majority of Republicans in voting no. 

The House actions appear to be more motivated by political point-scoring than by principle—especially for the Republicans. After all, Republicans have passed up on opportunities to invoke the War Powers Act during dozens of other U.S. interventions since the statute was first enacted in the aftermath of the Vietnam War. When presidents initiated military actions in Lebanon and Grenada (1983), Haiti (1994), Bosnia (1995), Sudan (1998), and Kosovo (1999), Republican leaders in Congress remained largely silent on matters of Congressional authorization, relying instead on the Commander-in-Chief clause of the Constitution.

It is unfortunate that Congress cannot decide whether NATO’s humanitarian intervention in Libya is deserving of full U.S. support. What was intended as a targeted intervention has turned into a drawn-out engagement, because Congress has not authorized the kind of robust mission needed to defeat Gaddafi and his mercenaries.  So long as the legal basis for the war in Libya remains suspect—because the President neither informed Congress in advance of the mission, nor sought its endorsement for the actions taken—no legal authority or rationale exists for this mission. It’s a legal morass that could be resolved if Obama simply called the Republicans’ bluff and dared them to vote against trying to save Libyan lives.

Instead, the President’s approach might ultimately force a constitutional ruling from the courts—for better or for worse. The problem here is that Obama has been surprisingly keen to push for increased Presidential authority on national-security issues—not unlike his Republican predecessor. The fact that he campaigned for limiting that power—which was abused during the Bush era—reinforces public cynicism.

Having surpassed the statutory limit of 90 days of fighting, President Obama no longer has any excuse for not seeking formal Congressional approval. That Gaddafi is a bad leader and a murderer does not constitute legal justification for continuing to fight—even if it’s “the good fight.” It should be easy to persuade Congress that, in Gaddafi, we are facing a potential Pol Pot, Idi Amin, or Charles Taylor. The important part is that Obama do so soon, so that we can move beyond allegations that the rule of law and public trust are being violated. Furthermore, formally bringing the issue before Congress would provide a good opportunity to test the War Powers Act—nearly four decades later—in normal political avenues, not in a legal labyrinth.

UPDATE, 6/24/11, 4:30 p.m. — The text above was amended to include a reference to the Congressional action taken earlier today. 


Henry "Chip" Carey is an associate professor of political science at Georgia State University.

[Official White House Photo by Pete Souza]

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