War Powers: Libya

"Military Operations in Libya: No War? No Hostilities?," 42 Pres. Stud. Q. 176 (2012). In March 2011, President Obama announced he had received "authorization" from the U.N. Security Council to use military force against Libya, a nation that had not posed any threat to the United States. For such offensive action he needed authorization from Congress. Later he reported that the operations were being shifted largely to NATO countries, but NATO is not a substitute for Congress either. This military initiative, to last a matter of "days, not weeks," according to Obama, raised issues under the 60-90 day clock of the War Powers Resolution, prompting the administration to claim that the bombing and goal of regime change in Libya did not constitute either "war" or "hostilities."
"Parsing the War Power," National Law Journal, July 4, 2011. Following World War II, Presidents and their aides have gone to great lengths to explain to Congress and the public that what they are doing with military commitments is not what they are doing. Presidents Truman, Johnson, and Clinton all gave misleading and deceptive explanations for their actions in Korea, Vietnam, and Iraq. President Obama is doing the same in Libya by arguing that the military operations are neither "war" nor "hostilities." He publicly stated in 2007 and more recently in 2011 that it is "always" better to take military action with congressional engagement and support. He failed to follow his own advice with Libya.
"Senate Should Protect War Powers on Libya," Roll Call, June 29, 2011. Because of its constitutional role with treaties and appointment of ambassadors, the Senate supposedly has a more prominent role in foreign affairs than the House. But the House came first to the floor on June 3 on this issue and has passed several restrictive measures. It also refused to authorize the war. Not until June 28 did the Senate hold hearings on the war in Libya, and its position within the Foreign Relations Committee and in introduced bills has been to endorse the administration with only the expectation of being consulted. Members of Congress take an oath of office to support and defend the Constitution, not the President.
Statement before the Senate Foreign Relations Committee, "Libya and War Powers," June 28, 2011. This testimony begins by reviewing "presidential doubletalk" in the field of military actions. It then rejects the arguments of the Obama administration that it may obtain "authorization" from the UN Security Council and NATO allies, that military operations in Libya do not amount to "war," and that they do not constitute "hostilities" within the meaning of the War Powers Resolution. Also examined: the administration's reliance on S. Res. 85, the distinction between "kinetic" and "non-kinetic," and the claim that the Security Council may "mandate" military action by the United States.
"Obama's Military Commitment to Libya," a paper presented at the Wilson Center, Washington, D.C., May 16, 2011. While engaged militarily in Afghanistan and Iraq, President Obama in March 2011 opened a new war in Libya without seeking or obtaining authority from Congress. As with President Truman in 1950, he claimed to receive "authorization" from the UN Security Council. This paper rejects that constitutional argument and explains how this "limited" military operation in Libya deepened with an effort to remove Colonel Qaddafi from power and shift frozen Libyan assets to rebel forces. Also critiqued is the April 1 OLC analysis on Libya and dependence on S. Res. 85, which passed the Senate in 35 seconds without any debate.
"Obama's U.N. Authority?," National Law Journal, April 18, 2011. President Obama claimed that he initiated military operations against Libya on the basis of authority he received from the U.N. Security Council. He did not seek authority from Congress. This article explains why the U.N. Charter did not, and could not, transfer constitutional authority vested in Congress by Article I and place it with an international body like the U.N. or a regional body like NATO. The framers of the U.N. Charter and the drafters of the U.N. Participation Act of 1945 all understood that the President would have to seek prior authority from Congress for any U.N. military operation.
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