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 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.
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.
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.
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.
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