Issue Report: US and NATO intervention in Libya

Is the US and NATO mission in Libya legal and justifiable?

The United States initiated military operations in Libya in early March of 2011, with a broad international coalition under NATO command, in order to defend civilians engaging in a popular revolution against Muammar Qadhafi. The brutal suppression and murder of these civilians by Qadhafi’s regime led to calls by the Arab League for NATO action as well as UN Resolution 1973, which authorized the limited mission of protecting Libyan civilians with a no-fly zone. The US and NATO attempted to execute this mandate by bombing select pro-Qaddafi forces and munitions and maintaining air superiority over the country. The US formally transferred command of these operations to NATO on April 1st. The conflict continued apace through June. During this period, it become clear that the US and NATO mission had extended beyond simply protecting civilians to regime change. This has included the active military support of anti-Qadhafi fores as well as targeted bombing campaigns. An international debate has followed these events. Many in the US have claimed that President Obama needed Congressional approval after 60 days of the conflict, in accordance with the War Powers Act. But the President has argued that this law, passed in the wake of the Vietnam War, does not apply because US engagement does not rise to the level of “hostilities” contemplated by the law. Other questions concern whether the war has extended beyond the UN mandate and whether the engagement is even worthwhile for NATO, the US, and the wider world. The pros and cons in this contentious debate are considered below.

Hostilities: Is US engaged in "hostilities" under War Powers?

US action in Libya does not amount to hostilities/war

Obama Administration letter to Congress justifying Libya engagement, June 15th, 2011:

“The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.”

US ground forces not engaged in hostilities in Libya.

This is a critical factor in whether US actions can be considered “hostilities”. If no troops are engaged in hostile fire, than generally military actions should not be considered “hostilities” in the spirit of the War Powers Act, which was created in reaction to the large-scale US commitment of troops in Vietnam.

US maintained limited role in Libya campaign.

Text of Obama's Speech On Libya: "A Responsibility To Act." March 28th, 2011:

“we’ve accomplished these objectives consistent with the pledge that I made to the American people at the outset of our military operations. I said that America’s role would be limited; that we would not put ground troops into Libya; that we would focus our unique capabilities on the front end of the operation and that we would transfer responsibility to our allies and partners. Tonight, we are fulfilling that pledge.”

US gave full command in Libya to NATO on April 1

Obama Administration letter to Congress justifying Libya engagement, June 15th, 2011:

“At the onset of military operations, the United States leveraged its unique military capabilities to halt the regime’s offensive actions and degrade its air defense systems before turning over full command and control responsibility to a NATO-led coalition on March 31. Since that time: Three-quarters of the over 10,000 sorties flown in Libya have now been by non-U.S. coalition partners, a share that has increased over time. All 20 ships enforcing the arms embargo are European or Canadian. The overwhelming majority of strike sorties are now being flown by our European allies while American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets, all within the UN authorization, in order to minimize collateral damage in urban areas. The United States provides nearly 70 percent of the coalition’s intelligence capabilities and a majority of its refueling assets, enabling coalition aircraft to stay in the air longer and undertake more strikes.”

US merely supporting NATO; War Powers inapplicable

Obama Administration letter to Congress justifying Libya engagement, June 15th, 2011:

“The President has honored his commitment to focus the preponderance of our military effort on the front end of operations in Libya, using our unique assets to destroy key regime military targets and air defense capabilities in order to establish a no-fly zone and enable protection of civilians as part of the enforcement of UNSCR 1973. These actions set the conditions so that, after a limited time, command of these operations transferred to NATO. Since that April 4 transition, U.S. military involvement has been limited to a supporting role, enabling our allies and partners to ensure the safety of Libyan civilians.”

Under $1b in spending can hardly be called a 'war.'

Compared to the hundreds of billions of dollars that have been spent in Afghanistan and Iraq, the couple hundred million dollars being spent in the Libyan campaign can hardly rise to the level of a “war.” This is why the Pentagon has a discretionary budget of $1b for urgent military matters that do not require Congressional approval.

Regime change is not a military objective in Libya

Text of Obama's Speech On Libya: "A Responsibility To Act." March 28th, 2011:

“Of course, there is no question that Libya — and the world — would be better off with Gadhafi out of power. I, along with many other world leaders, have embraced that goal, and will actively pursue it through non-military means. But broadening our military mission to include regime change would be a mistake. The task that I assigned our forces — to protect the Libyan people from immediate danger, and to establish a no-fly zone — carries with it a U.N. mandate and international support. It’s also what the Libyan opposition asked us to do. If we tried to overthrow Gadhafi by force, our coalition would splinter. We would likely have to put U.S. troops on the ground to accomplish that mission, or risk killing many civilians from the air. The dangers faced by our men and women in uniform would be far greater. So would the costs and our share of the responsibility for what comes next.”

US is clearly engaged in sustained hostilities in Libya

Glenn Greenwald. "The illegal war in Libya." Salon. May 19th, 2011:

“It was equally clear from the start that this Orwellian-named ‘kinetic humanitarian action’ was, in fact, a ‘war’ in every sense, including the Constitutional sense, but that’s especially undeniable now. While the President, in his after-the-fact speech justifying the war, pledged that ‘broadening our military mission to include regime change would be a mistake,’ it is now clear that is exactly what is happening. ‘Regime change’ quickly became the explicit goal. NATO has repeatedly sought to kill Gadaffi with bombs; one attack killed his youngest son and three grandchildren and almost killed his whole family including his wife, forcing them to flee to Tunisia. If sending your armed forces and its AC-130s and drones to another country to attack that country’s military and kill its leader isn’t a ‘war,’ then nothing is.”

War Powers covers US forces playing supporting role in wars.

Text of War Powers, Interpretation of Joint Resolution: “For purposes of this chapter, the term ‘introduction of United States Armed Forces’ includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.”[1]

Troops needn't be on ground to call Libya engagement war.

David Bromwich. "The Bipartisan Case Against U.S. Involvement in Libya." The Huffington Post. June 20th, 2011:

“Jason Linkins has summed up [the White House’s] legalistic peculiarity: ‘If forces from the United States aren’t actually dying, it’s not a war, never mind the fact that U.S. forces are, nevertheless, actively engaged in an attempt to kill people.’ By the same logic that says a one-sided air war is not a war, a president may launch hundreds of missiles against an enemy on his own initiative, so long as the targets have no means of retaliation. […] How to account for the sophistry of this attempt to placate Congress by pretending that the Libya War is not a war? The Obama White House, it would seem, is creating an executive license for purely offensive wars, so long as no American casualties are incurred.”

Obama implies drone warfare OK without Congr approval.

Jacob Sullum. "Why Obama’s stand on Libya is absurd." Chicago Sun Times. June 21st, 2011:

“According to the administration’s logic, Congress has no say over the president’s use of the armed forces as long as it does not involve boots on the ground or a serious risk of U.S. casualties — a gaping exception to the legislative branch’s war powers in an era of increasingly automated and long-distance military action. As Harvard law professor Jack Goldsmith, a former head of the OLC, told the Times, ‘The administration’s theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution’s time limits.'”

US is committing acts of war in Libya; War Powers apply.

Tufts University law professor Michael Glennon, who has studied the U.N. Charter, compares Obama joining the coalition against Muammar Gaddafi with Harry Truman’s unilateral decision to enter the fight that turned into the Korean War. “If you don’t call it a war, you can just bypass the constitutional requirements of starting a war. That’s a totally bogus argument.” He points out that the length and scope of the conflict may not matter – a missile launched against another country could be considered an act of war, even though it only took a handful of minutes and a couple million dollars. Acts of war are clearly just as important as full-blown wars, so are covered by the War Powers.

US has lead role in NATO in Libyan war.

Bruce Ackerman and Oona Hathaway. "Death of the War Powers Act." Washington Post. May 17th, 2011:

American planes and drones continued their bombing long after the April turnover — and the drones are still flying over Libya. Since the cost of the mission is at three-quarters of a billion dollars and climbing, it is sheer fiction to suggest that we are no longer a vital player in NATO’s ‘Operation Unified Protector.’ This is especially so when an active-duty American officer remains at the top of NATO’s chain of command. As supreme allied commander, Adm. James Stavridis ‘leads all NATO military operations.’ While a Canadian air force general, Charles Bouchard, is in charge of the Libyan campaign, the buck doesn’t stop with him but with Stavridis, who also reports to the Pentagon as head of the U.S. European command. Even if American drones discontinue their operations before the deadline, an American admiral will still be in a position to call the shots.”

Costs of engagement in Libya help show it's a war.

Dem Rep Dennis Kucinich April 19th letter to colleagues on Libya conflict

regarding introduction of legislation that will assert Congress’ constitutional responsibility to make decisions about declaring war: “The costs of this war are already mounting. According to figures recently released by the Pentagon, the war has cost the U.S. $608 million thus far, not including the costs to deploy U.S. Armed Forces to participate in the war in Libya. Experts at the Center for Strategic and Budgetary Assessments believe that the U.S. costs could “easily pass the $1 billion mark…regardless of how well things go.”[2]

US law: Is intervention consistent with other factors of US law?

US needn't have been attacked to use force in Libya.

Some argue that the US wasn’t attacked, so the president had no authority to use force. This, however, is too narrow an interpretation. There are many instances where vital US values and interests are at stake and must be defended. In this case, the interest in protecting civilians from mass slaughter and preventing a tyrant from winning a victory in the midst of the Arab Spring constituted a legitimate interest for the use of force.

Pres has authority to commit to non-war military action.

The War Powers Resolution says that it is not “intended to alter the constitutional authority of the Congress or of the President.” As the Commander and Chief, the President does have the authority to commit the US to military action that stops short of war that is deemed by the president as critical to US national interests. This is reflected in the Pentagon’s ongoing $1b budget for discretionary, urgent military engagements. Libya falls within this category completely, so is well within the Obama’s Constitutional authority.

UN Resolution prevents escalation of Libya mission.

There is little risk of the military mission in Libya escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians. The War Powers Act was designed to counter such mission creep, as it occurred in Vietnam. But, since there is virtually no risk of this occurring in Libya, the spirit of the War Powers act can hardly be said to apply.

Obama under $1b limit in Libya; Congress not needed

Daniel Stone. "Is the Libya War legal?" The Daily Beast. March 22, 2011:

“Despite the television pictures of bombs and cruise missiles finding their targets, the intervention by the United States and European allies is, legally, not yet an actual war. Funding for the U.S. involvement is coming from a flexible Pentagon spending account that allows the administration to spend up to about $1 billion dollars on urgent military matters without approval from Congress.”

Even regime change goals in Libya have moral legitimacy.

Obama Administration letter to Congress justifying Libya engagement, June 15, 2011:

“A growing chorus of international voices has now called for Qadhafi’s departure, including the G8, the Contact Group representing more than 20 countries, Russian President Medvedev, Turkish Prime Minister Erdogan, and several key African leaders such as the Presidents of Gabon, Mauritania, and Senegal. This growing consensus and Qadhafi’s control of less and less of Libya indicate that his departure is only a matter of time.”

Libya didn't attack US; President not authorized for war

Bruce Ackerman. "Obama's Unconstitutional War." Foreign Policy. March 24th, 2011:

“After the Vietnam War, Congress passed the War Powers Resolution, which granted the president the power to act unilaterally for 60 days in response to a ‘national emergency created by attack upon the United States, its territories or possessions, or its armed forces.’ The law gave the chief executive an additional 30 days to disengage if he failed to gain congressional assent during the interim. But, again, these provisions have little to do with the constitutionality of the Libyan intervention, since Libya did not attack our ‘armed forces.’ The president failed to mention this fundamental point in giving Congress notice of his decision on Monday, in compliance with another provision of the resolution. Without an armed ‘attack.’ there is no compelling reason for the president to cut Congress out of a crucial decision on war and peace.”[3]

Libya war weakens War Powers; makes going to war easier

Bruce Ackerman and Oona Hathaway. "Death of the War Powers Act." Washington Post. May 17th, 2011:

“Once Obama crosses the Rubicon, future presidents will simply cite Libya when they unilaterally commit America to far more ambitious NATO campaigns. If nothing happens, history will say that the War Powers Act was condemned to a quiet death by a president who had solemnly pledged, on the campaign trail, to put an end to indiscriminate warmaking.”

Libya war illegally circumvents Congr approval

Reps. Dennis Kucinich and Walter Jones filed a lawsuit against President Obama in federal court against President Obama to “challenge the commitment of the United States to war in Libya absent the required constitutional legal authority […] the executive branch’s circumvention of Congress and its use of international organizations such as the United Nations and the North Atlantic Treaty Organization to authorize the use of military force abroad, in violation of the Constitution.”[4]

Obama sole authority in Libya rejected by top US lawyers

War Powers might be bad law, but it must be obeyed.

"War powers irresolution." The New York Post Editorial. June 21st, 2011:

“The War Powers Resolution was passed — unwisely, in our view — to tie a particular president’s hands at a difficult period in American history. But it’s the law. How would it harm American security interests to obey it?”

International authority: Does mission have sufficient i-authority?

US engagement in Libya has UN/NATO legal authorization.

James Joyner: “While one can debate the degree to which the presidency is imperial, it’s simply untrue that the war in Libya is illegal in any shape, manner, or form. It’s being conducted under the auspices of both the UN Charter and the North Atlantic Treaty, which rather covers it internationally.”[5]

US joined international coalition in Libya

Democratic strategist Steve McMahon: “Lots of people have been calling on the president to [set up a no-fly zone], and when the U.N. did it, the White House said America’s in as part of a coalition. It’s the most responsible walk-up to military action that I’ve seen from a president in a long time.”[6]

US/NATO has authorization of Middle East states.

The US gained the official support, or call for help, from the Arab League before acting in Libya. This added a critical layer of legitimacy and thus legality to the operation, particularly due to the sensitivities of Arab countries to Western military operations in their region.

US/NATO have acted consistent with UN Res 1973.

Obama Administration letter to Congress justifying Libya engagement, June 15, 2011:

“In the intervening weeks and months, coalition efforts have been effective in protecting the Libyan population. The regime has suffered numerous defeats, cities and towns across Libya have been liberated from brutal sieges, strong sanctions are in place, and the regime is encountering serious difficulties raising revenues through oil sales or other means. All these actions and outcomes are consistent with UNSCR 1973.”

US responded to Qadhafi loss of sovereign legitimacy

US Libyan intervention wrongly rests on NATO authority.

The lawsuit against President Obama aims to protect the American public from, in addition to avoidance of the War Powers Act, the policy that a president may commit the United States to a war under the authority of the North Atlantic Treaty Organization (NATO) in violation of the express conditions of the North Atlantic Treaty ratified by Congress.[7]

UN authorization of Libyan war no substitute for Congr approval

Bruce Ackerman. "Obama's Unconstitutional War." Foreign Policy. March 24th, 2011:

“Obtaining a U.N. Security Council resolution has legitimated U.S. bombing raids under international law. But the U.N. Charter is not a substitute for the U.S. Constitution, which gives Congress, not the president, the power ‘to declare war.'”

UN approval for Libyan engagement dilutes US authority.

"EDITORIAL: Obama’s illegal war." The Washington Times Editorial. March 18th, 2011:

“The president cannot be seen as a mere instrument of the United Nations, which would relegate the U.S. Constitution to second-class status behind the U.N. Charter. If U.S. troops are going to be put in harm’s way, the authority must come from elected representatives in Washington, not from a bunch of international bureaucrats hanging out in Turtle Bay.”

US interests: Is Libya intervention critical to US interests?

Libyan intervention critical to US interests

Obama Administration letter to Congress justifying Libya engagement, June 15, 2011:

“The President authorized these actions for several reasons of national interest: 1. To limit the spread of violence and instability in a region pivotal to our security interests, particularly while it is undergoing sensitive transitions; 2. To prevent an imminent humanitarian catastrophe; and 3. To show the people of the Middle East and North Africa that America stands with them at a time of momentous transition.”

Protecting civilians in Libya is key US value/interest

Text of Obama's Speech On Libya: "A Responsibility To Act." March 28th, 2011:

“To brush aside America’s responsibility as a leader and — more profoundly — our responsibilities to our fellow human beings under such circumstances would have been a betrayal of who we are. Some nations may be able to turn a blind eye to atrocities in other countries. The United States of America is different. And as President, I refused to wait for the images of slaughter and mass graves before taking action.”

Libya mission prevented refugees flooding Tunisia/Egypt.

Text of Obama's Speech On Libya: "A Responsibility To Act." March 28th, 2011:

“America has an important strategic interest in preventing Gadhafi from overrunning those who oppose him. A massacre would have driven thousands of additional refugees across Libya’s borders, putting enormous strains on the peaceful — yet fragile — transitions in Egypt and Tunisia.”

Inaction in Libya would have weakened Arab spring

US has interest in enforcing UN resolution 1974

Without US involvement, Libya would turn into a disaster

Many factors came together to favor US action in Libya

Libya intervention won US/NATO respect of Arabs

Obama first accused of deliberating too much over Libya

Libya war expands imperial presidency farther than ever

Bruce Ackerman and Oona Hathaway. "Death of the War Powers Act." Washington Post. May 17th, 2011:

“Make no mistake: Obama is breaking new ground, moving decisively beyond his predecessors. George W. Bush gained congressional approval for his wars in Afghanistan and Iraq. Bill Clinton acted unilaterally when he committed American forces to NATO’s bombing campaign in Kosovo, but he persuaded Congress to approve special funding for his initiative within 60 days. And the entire operation ended on its 78th day. In contrast, Congress has not granted special funds for Libya since the bombing began, and the campaign is likely to continue beyond the 30-day limit set for termination of all operations.”

Libyan engagement wrongly uses previously appropriated Cong. funds.

The lawsuit against President Obama aims to protect the American public from the use of previously appropriated funds by Congress for an unconstitutional and unauthorized war in Libya or other countries.[8]

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