Intervener-in-Chief: Libya and the Constitution

During times of international crisis and activity, the media and public produce a flurry of commentary, opinion, and analysis----most of it complete bullshit. Abusing public events is the easiest way to get one's name in the open, and how best to do that but criticize or spread fantastic rumors?

I previously expressed my support and opinion on the situation in Libya and the UN resolution authorizing a no-fly zone to secure the civilian population, supported by "all necessary measures" short of "foreign occupation force". In the immediate aftermath of the strikes launched---led by the United States, United Kingdom, and France---speculation arose about the scope and direction of the operations, whether we were "at war in a third [Muslim/Arab/Middle Eastern] country"; furthermore, "questions" (read: loud complaints) are being raised about the constitutionality of the UN-authorized strikes:

Critics say the merits of the operation and its legality under international law are matters separate from the domestic legal question of who — the president or Congress — has the authority to decide whether the United States will take part in combat. (NYT)

The President has already released his own response, a two-page letter defending his status as Commander-in-Chief, outlining the limited nature of the engagement that places the intervention as below that of declaration of war, and reminding the Congress that he met with and consulted its members prior to announcing and ordering the strikes. But the issue lingers in the public eye and vociferous debate rages. I would like to use this post to clear up this matter.

THE CONSTITUTION AND AMERICAN MILITARY INTERVENTION

The disagreement comes from a conflict in interpretations of two points in the Constitution:

The Congress shall have Power...To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water [AND] To make Rules for the Government and Regulation of the land and naval Forces...(Article I, Section 8, Clauses 11 and 14)

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...(Article II, Section 2, Clause 1)

Thus, depending on one's interpretation, the President has the power to call the armed forces into action to defend the United States (and/or its interests), or he must receive direct authorization from Congress to do anything that could be called an act of war. The criticism of President Obama derives from the latter view, that armed attacks against Libya without a vote of authorization or stronger consultation of Congress violate the principles of the Constitution by committing acts of war without a war declaration, which would be Congress’ purview.

Furthermore, the War Powers Resolution, passed in 1973 in the wake of deep distrust of Presidential authority and military action, explicitly states that if the President authorizes armed attack against another nation that does not include a declaration of war, such action must be ended within 60 days, and Congress must be notified within 48 hours. In making the public announcement immediately after the resolution was passed, privately consulting the members of Congress prior, and insisting that the engagement will remain less than 60 days, President Obama has not (yet) violated the terms of this law. But even more so, the action is not unconstitutional for even broader reasons than this.

Allow me to explain why the President's authorization of strikes against Libya under the auspices of United Nations Resolution #1973 are fully within the President's power as laid out by the Constitution and under the authority of Congress.

THE UNITED NATIONS CHARTER

First, the United States is signed to the United Nations Charter and ratified its provisions; this is not a document of convenience, it is a fully obliging international treaty. This is backed up by American law: in 1945, the United States Congress passed the United Nations Participation Act (UNPA), which (1) ratified American participation in the UN, and (2) set the guidelines for that participation, including sanctions and actions of the President to follow the UN’s directives.

In order to ensure the smooth participation of the United States in the United Nations and the Security Council, Congress, as part of ratification of the UN Charter, provided certain powers to the President for an American role in enforcing the Charter. Specifically, Section 7 of the UNPA states:

SEC. 6. 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 nothing herein contained shall be construed as an authorization to tile [sic] 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.

The UNPA explicitly declares that the President does NOT have to seek special approval by the Congress to participate in actions undertaken and approved by the full Security Council “under Article 42 of said [UN] Charter”…well, that leads to the immediate question: what is Article 42?

To answer that, we need to look at Articles Forty-One and Forty-Two of the UN Charter. The following comes directly from the text of the Charter—

Chapter VII, ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

[…]

Article 41. The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

In layman’s terms, Article 41 authorizes the Security Council to pass sanctions and other non-military methods of punishment when a country violates the Charter through acts of aggression or breaches of the peace. Article 42 states that if the Security Council determines that the nonmilitary actions taken from Article 41 are not enough to stop the aggression, then military force against the offending country can be authorized.

Remember, the UNPA said that under American law, the Congress wouldn’t need to be asked for permission if the President was offering resources to the UN Security Council pursuant to Article 42. Thus, the President was acting under the assumption that Article 42 was in effect, and felt he had consulted Congress sufficiently, therefore he was confident offering American military resources was legal and pursuant to American obligations to the UN.

CONCLUSION

Taken together, what does this mean? This means that the members of Congress criticizing the President for taking action against Libya under a UN Security Council resolution are kidding themselves. President Obama was and is fully within legal authority to use American armed forces against Libya, pure and simple.

The arguments surrounding the issue of a Libyan no-fly-zone and the general subject of intervention are serious, complex, and ambiguous. There are strong ideological, political, and logical reasons behind the pro- and anti- interventionist stances. The policy argument is important; indeed, we can find no clear answer on the “right” course of action regarding Libya. I happen to support the interventionist ethic, in the hopes of providing greater precedent for future action and decisiveness during future similar crises. Yet I also respect the opposition’s view and core question of what the American national interest is in Libya, and whether our actions are counterproductive rather than helpful. This is a discussion well worth having.

However, questioning the legality of the President’s actions is a cowardly method to try to win a policy debate. Anyone is entitled to question the wisdom of committing forces to Libya, and the Congress is justified and within its power to demand stringent oversight and accountability to ensure no long-term commitment similar to those in Afghanistan and Iraq; targeting the policy as “illegal” or “unconstitutional” is asinine at best and intentionally deceptive at worst. Let it be clear that the President is within legal rights to have committed limited US forces to a short engagement under the authority vested by the UN Security Council and ratified by the UN Participation Act of 1945, under the regulations outlined in the War Powers Resolution, pursuant to the ideals and limits laid in the Constitution of the United States.

You try it. No really.

Recently I tried my hand at balancing the Federal budget with the NYT's interactive deficit-reduction feature, here's the rough plan: http://www.nytimes.com/interactive/2010/11/13/weekinreview/deficits-graphic.html?choices=7zxvn9qc

Mine is an enormous surplus for rapid repayment of debts and/or expansion of discretionary spending on certain projects, but it has room for several adjustments, or much smaller surpluses. I invite you to use the clear-choices button and try your hand at it, at the very least this tool is good at illustrating the choices at hand, the sacrifices that might be necessary for budget reduction, and educating us about what we do or do not support among these options. Please try it, I would love to see the different results.

Libya: A New American Leadership

UN RESOLUTION #1973 is the subject of tonight's post.

The concern over the resolution stems from the soon-to-be-cliché phrase "all necessary measures" in paragraph 4, authorizing the use of military force to bring about the security of civilians. The phrase has been over-quoted in the media, becoming the bolded-headline across cable TV and newsprint the world over. Its out-of-context use makes it sound like the UN resolution has authorized some kind of military intervention on the scale of the first Persian Gulf War or the occupation of former Yugoslavia, or even the Korean War, all of which were UN-resolution authorized (a note on Yugoslavia in a moment).

In fact, the resolution explicitly prohibits "a foreign occupation force of any form on any part of Libyan territory" in the same sentence that authorizes "all necessary measures".

I understand the reservation of Americans to use force in yet another Muslim-majority developing country (many media sources are calling it a "Middle Eastern" country despite the fact that Libya is firmly an African continental state), indeed I share some of those reservations. Critics are also correct in pointing out that although we may idealistically want to support the interim rebel government "leading" the revolution from Benghazi, the council there may not be as democratic or ideal as we hope, and that the politics of these circumstances are not as simple as wild-eyed interventionists would love to think.

But there is something simple in all this: Muammar Gadhafi is a madman, a despot, and a murderer. He has made no attempts to hide the sheer scale of the violence he intends to unleash upon his people. He has said at different points that he would kill opponents "house by house", that the rebels were (in a haunting reference to the Rwandan genocide's language) "cockroaches" to be "crushed", and that "Libya will turn to hell" as he arms his people to slaughter the enemy and protesters who, for not loving him, "don't deserve to live".

This is not rhetoric to be easily misinterpreted. This is not simply parading for the domestic TV stations like North Korea's regular threats of "war"; this is a man who relished the opportunity to bomb civilian planes and support suicide attacks; this is a man whose iron grip has already slaughtered people in his nation; this is a man whose armies are as I write advancing on his opponents' positions, pillaging, raping, and murdering anyone who gets in the way of the great leader's will. Civilians supportive of the rebel uprising face harsh reprisal and slaughter if he is allowed to advance unchecked.

This is not an argument over if there are WMDs in Libya*

This is not a counterinsurgency against an invisible guerrilla enemy.

This is not a long-term occupation.

This is the United Nations authorizing the use of force and threat of force to get the madman's armies to pull back, or suffer debilitating consequences if he fails to observe the ceasefire order. The move will enforce an arms embargo to limit his armies' supplies and will shoot down his vital air attacks on rebel fortifications. It explicitly rules out the use of soldiers or armed troops to intervene directly anywhere in Libya, and places special emphasis on the participation of the Arab League, an organization comprising almost every country in North Africa and the Middle East.

The move has support by votes from European allies in NATO (Germany excepted), Arab League members (who formally suspended Libya from their organization and requested the resolution), as well as the African and Latin American representatives on the Security Council, with only abstentions from Russia (who has arms deals with the Libyan government), China (who has a long history of opposing foreign intervention of any kind), India, Brazil, and Germany (all three of whom are hesitant to approve international military force and who wished for more information before greater action). All of these nations' votes and arguments can be read in the UN report highlighted at the beginning of this post.

I support the actions authorized in the UN resolution because they entail limited measures against the Gadhafi regime. NATO members and the Arab League have agreed and are preparing to shoulder the burden of enforcing this resolution, meaning America's participation in enforcement will not be solo or unsupported. The President has already ruled out troops on the ground, but as the following NBC report shows, he is resolved to carry out the will of the international community, and with their support:

This time, the United States is a leader in global good, in rallying world leaders to support the protection of human rights and innocent lives, and is one among many nations participating in the sanctioning the deplorable acts of an insane dictator. The costs of inaction would have been morally reprehensible and on our hands, just as Rwanda and the Congo and Somalia are now, and this is a moment where America's might, is being used for the right.