Written by Joseph Klein
Things are heating up over Libya and I do not mean just NATO’s sustained aerial bombing campaign. President Obama is facing a challenge in Congress and in court over his failure to seek congressional authorization for U.S. military involvement in the Libyan war in accordance with the United States Constitution and the War Powers Resolution. And while the Obama administration seems to think that all it needs to do is to act within the authority granted by the United Nations Security Council, tempers are beginning to fray at the Security Council, too, as the war drags on.
House Speaker John Boehner (R-OH) sent a letter to President Obama on June 14th warning the White House that its continued deployment of U.S. military troops in the North African country appeared to violate the law requiring any U.S. president, within 60 days of his the launching of a military engagement, to secure congressional authority for doing so. The letter told President Obama that he was out of time and demanded a legal justification for passing the deadline.
Meanwhile, ten congressmen, led by Reps. Dennis Kucinich (D-OH) and Walter Jones (R-NC), filed a bipartisan complaint in the U.S. District Court for the District of Columbia on June 15th challenging the legality of Barack Obama’s military intervention into Libya without congressional authorization. They allege it violates the Constitution and the War Powers Resolution. The complaint seeks “injunctive and declaratory relief to protect the Plaintiffs and the country from a policy that a president may commit the United States to a war under the authority of the United Nations without authorization from Congress.”
The White House responded on June 15th with a report that purported to legally justify why President Obama could go it alone in Libya without congressional approval, even though the Obama administration has acknowledged that the Libyan war is not a response to a direct threat to the United States. Indeed, on March 28, 2011, President Obama described the Libyan conflict as one of the “times . . . when our safety is not directly threatened, but our interests and our values are.” President Obama also said that the United States would be involved for a matter of days or a few weeks. We have now been involved for three months and counting.
The administration is trying to argue that it does not matter since we are not really involved in hostilities over the “shores of Tripoli.” According to the Obama administration’s reasoning, our limited support for our NATO allies who are doing the heavy lifting in conducting the aerial bombing does not rise to the level that would warrant the congressional approval requirements of the War Powers Resolution.
In a joint interview to explain their rationale, Harold Koh, the State Department legal adviser, and Robert Bauer, the White House counsel, argued that American forces had not been in “hostilities” at least since early April when NATO took over leadership of the bombing campaign.
The Obama administration lawyers also sought to justify their position that the War Powers Resolution does not apply to Obama’s involvement of U.S. military forces in Libya because there are no troops on the ground and American forces face little meaningful threat from an exchange of fire with Libyan forces:
We’re not engaged in any of the activities that typically over the years in war powers analysis is considered to constitute hostilities within the meaning of the statute. We’re not engaged in sustained fighting. There’s been no exchange of fire with hostile forces. We don’t have troops on the ground. We don’t risk casualties to those troops.
Who knew that the estimated expenditure of $1.1 billion by this September at the current scale of operations ($715.9 million, from mid-March through June 3), the flying of missile-firing drones in Libyan airspace, search and rescue missions, and the continued flying of about a quarter of all air missions over Libya (including refueling and intelligence sorties) was so trivial?
Speaker Boehner’s spokesman Brendan Buck said that there were a number of questions regarding “the creative arguments” being made by the White House. That is an understatement.
Without getting too technical, the first thing to note in the War Powers Resolution is that it is not limited to requiring U.S. military intervention in which only ground troops are involved. Section 4 (a)(2) refers to the introduction of United States Armed Forces “into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair or training of such forces.”
What is it about the words “airspace of a foreign nation” that the Obama administration does not understand? Are they prepared to argue that our troops providing surveillance and logistical support are not “equipped for combat” in case they do meet armed resistance from Libyan government forces?
Moreover, according to public reports, U.S. personnel with Army Special Forces units and the Central Intelligence Agency (CIA) have been on the ground in Libya to assist the rebel forces. And does anyone seriously believe that if one of our unarmed drones were to go down we would just leave it there and allow the Libyan forces to get hold of our valuable technology for possible sale to one of our adversaries such as China?
The exception in Section 4 (a)(2) of the War Powers Resolution for “deployments which relate solely to supply, replacement, repair or training” applies to those activities in support of our own troops, not those of other NATO countries engaged in an offensive military operation, nor those of the Libyan rebel forces.
Section 8 (b) of the War Powers Resolution does allow “members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries” without any further specific congressional authorization, but only “in the headquarters operations of high-level military commands which were established prior to the date of enactment of this joint resolution.” In other words, our high-level military commanders can work with their NATO counterparts within the structure of pre-existing “headquarters operations” without further specific congressional approval. But this does not mean that the president is free to unilaterally put American military forces in harm’s way in support of NATO’s ongoing military intervention within the airspace of another country — one in which NATO has intervened without invitation.
The Obama administration makes much of the fact that the term “hostilities” is not specifically defined in the War Powers Resolution and then tries to put its own spin on the term by equating “hostilities” with direct combat operations, the use of ground troops and the likelihood of American casualties. This is important because the resolution applies where United States Armed Forces are introduced “into hostilities or into a situation where imminent involvement in hostilities is clearly indicated by the circumstances.” (Sec. 3)
The fundamental flaw in the Obama administration’s argument is that the authors of the War Powers Resolution apparently foresaw such a potential loophole and made it clear that our armed forces do not have to be involved in direct combat to be considered potentially engaged in hostilities. Section 8(c) defines the “introduction of United States Armed Forces” to include “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.” It is preposterous to argue that our close support of NATO sorties engaged in hostile bombing attacks in Libya does not inject our own armed forces into those hostilities. There is nothing in the War Powers Resolution that limits congressional authorization to situations where we are the singular leader of an ongoing military mission. When we deploy American armed forces to help one side engaged in hostilities in a foreign country, we, too, are necessarily engaged in those hostilities alongside our allies, albeit in a supporting role.
The most insulting argument that the Obama administration has made to justify its thumbing its nose at Congress is that President Obama is acting within the constraints set by the United Nations Security Council resolution, which authorized limited military force to protect Libyan civilians. On March 17, 2011, the Security Council adopted Resolution 1973, which authorized UN member states and regional organizations “to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi.” The UN resolution mandated that such measures should not include “a foreign occupation force of any form on any part of Libyan territory.”
First of all, the UN Security Council is not a substitute for the U.S. Congress under the U.S. Constitution. The notion that, since the Obama administration is operating within the constraints of the UN Security Council resolution, and therefore congressional authorization in this instance is unnecessary, represents a fundamental attack on U.S. national sovereignty and on the checks and balances that our Founding Fathers built into our Constitution.
Secondly, the mission in Libya has gone way past its limited objective of saving civilians, particularly in Benghazi, from the threat of imminent massacre and of establishing a no-fly zone to protect civilians from any further Libyan government air attacks. That objective was accomplished within the first few days. Despite the protestations to the contrary, it is clear from the pattern of NATO’s sustained bombing campaign in the capital of Tripoli that the military attacks are designed to get rid of Col. Muammar el-Qaddafi. We are now involved in a civil war, aiding rebel forces whom we know little about, including some who may have actually participated in the insurgency in Iraq against our own troops.
Finally, international consensus on the course of the war in Libya, if there ever truly was one, is in tatters. The UN Security Council is being pushed in different directions as France and the United Kingdom want more latitude in what they can do militarily, and the African Union is questioning whether NATO forces have already abused the limited authority granted for military action under Security Council Resolution 1973.
Three African members of the Security Council — South Africa, Nigeria and Gabon – have asked that the Security Council issue an official statement clarifying the limitations on the use of military force in Libya. According to a draft of the statement obtained by Inner City Press, its sponsors included the following language in an attempt to unambiguously re-affirm the limits of Security Council Resolution 1973:
The Security Council expresses its deep concern over the continuation of violence in Libya, and reaffirms its commitment to the full implementation of United Nations Security Council resolutions 1970 (2011) and 1973 (2011) in letter and spirit to ensure protection of civilians in Libya. The Security Council reaffirms that resolution 1973 (2011) explicitly excludes a foreign occupation force of any form on any part of Libyan territory… The Security Council reaffirms its strong commitment to the sovereignty, independence, territorial integrity and national unity of the Libyan Arab Jamahiriya.
Although the Obama administration told Congress not to worry about the Libyan war because the military mission was constrained by the UN Security Council resolution, the United States has reportedly opposed the African countries’ request to simply confirm those constraints.
The Obama administration is clearly hoping that the problem will soon go away with Qaddafi’s death or departure from Libya. An anti-Qaddafi member of Libya’s Mission to the UN expressed optimism that the tide is turning decisively against Qaddafi, telling Inner City Press that “the freedom fighters are now within 40 kilometers of Tripoli.”
In 2007, then-Senator Barack Obama stated that “[t]he president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
Barack Obama was right then, and is wrong now with regard to Libya. He may be playing for time in the hope that Qaddafi is soon history, but President Obama’s contempt for the U.S. Constitution will leave a lasting stain that will further mar his own legacy in history.
Joseph Klein is the author of a recent book entitled Lethal Engagement: Barack Hussein Obama, the United Nations and Radical Islam.