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.