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Libyan Intervention Still Illegal

As President Obama continues to gloat over "success" in Libya and the countries of Europe pat themselves on the back for the demise of the Gaddafi regime, Americans in general and Congress in particular ought not to forget the fact that the President of the United States engaged in the killing of foreign citizens and a forced regime change without any type of authorization or legal justification for the attack. The "success" of the mission (as for it really being a success or not... we'll see) does not justify it; ends do not justify means. Just because Congress has, in a fit of absentmanliness, neglected its sworn duties to uphold the Constitution in this matter does not mean that the President acted legally.

The President has yet to give a legal justification for the intervention. With no Congressional declaration of war or authorization of the use of force, all we have to go on is existing precedents. The two that spring to mind immediately are the War Powers Resolution, which President Obama openly defied by declaring the blowing up of foreign nationals did not count as "hostilities", and the Authorization of the Use of Military Force following 9/11, which also did not apply as Libya posed no threat to the United States and was not involved with the terrorist attacks on our nation ten years ago. Even the use of an Executive Order to authorize this military action is an illegitimate response, as the 1952 Supreme Court case Youngstown Sheet & Tub Co. v. Sawyer clearly sets forth that executive orders are invalid if they attempt to make law (and, constitutionally, going to war is done through law passed by Congress), rather than simply clarifying or acting to further a law already put forth by Congress or the Constitution.

The argument for the United Nations Resolution granting him this authority is equally specious for several reasons, the most blatant being that our military does not serve at the direction of an international organization, especially one in which nations like Russia and China maintain equal authority with us. The United Nations charter does not grant the organization the power to force regime change outside of in the interests of collective security--Gaddafi posed no threat to the collective security of U.N. members. What supporters of the Administration have leaned on most is the Responsibility to Protect doctrine endorsed by the General Assembly a few years ago. This was merely endorsed by a vote of the United Nations though, and never ratified as a treaty--meaning that it is neither international law nor Senate-sanctioned U.S. law, and therefore cannot serve as a legal justification for our intervention in Libya. Obligations to NATO are also irrelevant as an argument as NATO is a defensive alliance.

I am happy that Moammar Gaddafi is gone. He was a vile man responsible for brutalizing his citizens and for committing acts of terrorism against the United States and other countries. I hope that the Libyan people are able to embrace democratic reform and a respect for human rights. None of this, though, excuses our President from the law. As difficult as it is for us to deal with long, messy things like legality and the Constitution while atrocities are being committed elsewhere, they must be dealt with. The War Powers Resolution, though no where near perfect and certainly in need of a replacement solution, granted the President some leeway to respond to something immediately--sixty days with which to gain the consent of his coequal branch in government, Congress. The legislature, for its part, just rolled over, and the courts have thrown out lawsuits from those few members of Congress who refused to cave to the Executive Branch on this serious breach of power. It is during times of pain and chaos when we are most likely to disregard the law--which is why it is even more important that we, as Americans, fight even harder during these times to show the world that even in the face of deadly adversity, the rule of law can continue to preside over man. Remembering this is essential to our experiment in self-government.
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Discussions - 11 Comments

"Youngstown Sheet & Tub Co. v. Sawyer clearly sets forth that executive orders are invalid if they attempt to make law (and, constitutionally, going to war is done through law passed by Congress), rather than simply clarifying or acting to further a law already put forth by Congress or the Constitution." This misreads Youngstown, which was weakly argued in all the opinions--Youngstown does not deal with the president acting abroad. Obama was cowardly in not directly opposing the War Powers Act, and ridiculous in having his State Dept. counsel, the odious Harold Koh, argue that the U.S. actions in Libya did not constitute "hostilities" in the meaning of the Act.

I know Youngstown isn't an entirely stable argument to lean on with regards to foreign policy, especially with precedents like the various challenges against Vietnam. But in Medellin v. Texas, Roberts seemed to go out of his way to bring back Youngstown by reiterating that "The president's authority to act, as with the exercise of any governmental power, 'must stem either from an act of Congress or from the Constitution itself.'" Though, I know that Medellin is also muddled due to it being about domestic power versus power abroad.

The argument then comes down to what are the extents of and limits do the President's war powers as enumerated or implied by the Constitution (which would fit fine, I think, under the Youngstown and Medellin rulings as they say "stem from the Constitution itself"), so from there one could make an argument for the justification of the Libyan intervention in a John Yoo-like broad interpretation of the war powers. While I doubt I would be persuaded by any such argument in regards to Libya (other than attacking Gaddafi for his role in 1980s terrorist attacks), one could at least make the argument. But, as you said, the President was too cowardly to even do that.

I was more than disturbed by the president's casualness in intervening. His claim that this was NATO and not the US was absurd on its face. OK. But isn't Libya, in fairness, the latest in a long train of abuses, dating back to the late 40s? Another constitutional wrong doesn't make a right, but singling out President Obama seems to be rank partisanship.

Taking what I understand to be Ben Kleinerman's Lincolnian argument about war powers, I would uphold a Yoo view of Article II. That is, Obama (or whoever is the President) has to make a public case for the legitimacy of his action. This he failed to do. And Bush wasn't so great either. Arguments about the president's authority in these matters are never merely legalistic (the flaw of the Steel Seizure case opinions); they ultimately rest on prudential grounds. I actually think the Obama strategy on Libya (if there was one) worked out in the short run, but the larger question of who succeeds remains.

I was and still am critical of Bush's decision to invade Iraq. President Bush, however, attempted to build up a case in public and in private to go to war. He worked to try convince the American people and the international community of the necessity of the war. He convinced Congress and received authorization from the Congress to invade Iraq (which I don't think he should have received, because fighting two large wars for regime change in the Middle East is just idiotic strategery). While I have my problems with the War Powers Act and some of our post-WWII interventions abroad, no president has ever gone off and done something like this without getting even an inkling of support from Congress for it. The closest is President Clinton in Kosovo, but he at least had an argument that Congress had passed a bill funding the Kosovo campaign and thus had implicitly authorized the use of force.

President Obama initiated this conflict without notifying Congressional leadership until the day of, he did not bother to publicly speak about it to the American people until weeks after, and he simply told Congress that he didn't need their input as he was not in violation of the WPR because blowing people up isn't being hostile, and NATO is running the show. The first argument is asinine, the second is irrelevant. I do not know of another instant where a president has ever insulted both the public and the Congress when engaging in regime change (which, in his first round of telling us what was going on, he flatly said we weren't engaging in). This from a supposedly-great communicator.

Either they play by the WPR rules or they explain how they have the authority under the Constitution to do something. Obama did neither.

because fighting two large wars for regime change in the Middle East is just idiotic strategery

If it were 'idiotic' it would have been an abject failure and it has not been.

We'll see. It's still too early to tell.

If it is 'too early to tell', why did you make a declarative statement?

I was speaking in regards to whether or not Iraq was a failure. We'll see. Maybe they'll be able to be democratic and free from Iranian interferences, or maybe not. Maybe they'll be a model of democracy and security in the region, or maybe knocking out the secular tyrant that was keeping the deadly and religious rivalry between the Ayatollah and the House of Saud from tilting too heavily in one direction is really going to come back to bite us. I'm hoping for the former. We'll see.

My statement that it was poor strategy to open up another war in the Middle East focuses mostly on what I felt was a huge blunder not focusing all our strengths on eradicating the Taliban. Yeah, we got Bin Laden, but now we seem to be on the verge of losing Taliban-resurgent Afghanistan, and their president just came out and said he'd back Pakistan if we were to ever go to war with Pakistan. It also increased war fatigue at home, lessened the international support for our mission in Afghanistan, and distracted people from our war with the Taliban. If we had taken all that we put in Iraq and focused it on defeating our enemies and the enemies of humanity in Afghanistan, I am under the belief that things would be going better there right now.

Angelo Codevilla has an excellent article on this in the latest issue of the CRB.

It is a matter of no interest what you felt. An 'idiotic' plan should manifest itself in visibly wretched results. 'Visibly wretched' does not mean "anything other than costless". For your statement to be true, the results would not only have to be visibly wretched, they would have to be so for reasons readily attributable to the waging of two counter-insurgencies simultaneously.

And you erect a false dichotomy. It would be quite enough if Iraq merely rejoined the Arab mainstream it departed in 1958. That would mean:

1. A reasonable degree of public order;

2. Its political ambitions are pursued with common-an-garden intra-regional scrimmaging;

3. Its political class is willing to leave the society more or less alone except for public order maintenance and the usual nuisances which arise from the regulatory state and the state's school system.

----

As we speak, the homicide rate in Iraq has fallen to a level that would be unremarkable in Latin America; Dr. Mailiki's ministry has not attempted to conquer any neighboring territories, is not financing any insurgencies, and is not plotting the assassination of any other heads of state; and Iraq has a degree of political pluralism quite unusual in the Arab world after 1962 (found intermittently only in Morocco, Lebanon, and Kuwait). Close enough.

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