David Kopel at The Daily Caller is troubled by the legalities.
Money quote(s):
"Is President Obama’s war against the Libyan government legal? It is arguably compliant with modern international law, because it has been authorized by the United Nations Security Council. Nothing in international law, however, can change the United States Constitution’s procedures for when the United States can go to war — which require the consent of Congress."
Nothing in the U.N. Charter about it superseding the Constitution. I read it (the Charter) decades ago, and if it had said something like that I feel certain it surely would have stuck in my memory.
"(T)he Constitution gives Congress, not the president, the power “To declare War.” Some persons claim that the president’s commander-in-chief power includes unilateral authority to make war on his own initiative. The founders believed otherwise."
There is indeed a fuzzy bit of Constitutionality about the president's role as commander-in-chief and Congress' responsibility for declaring war. This is one of those areas that gets hashed out over time and there's often some back and forth over this stuff. That being said, it shouldn't be considered beneath the dignity of the commander-in-chief to comply with either the Constitution or at least the War Powers Act. Or so one might have thought.
"America’s first war in Libya — two centuries ago — complied with the Constitution. The Barbary pirates, who were supported by the government of Tripoli, seized American ships in the Mediterranean because the Americans would not pay protection money. While President Thomas Jefferson dispatched the American Navy to guard the ships, he asked Congress for permission to take further action. As his message to Congress acknowledged, authorization for offensive war is an “important function confided by the Constitution to the Legislature exclusively.”
Congress passed two separate authorizations for military force in 1801 and 1802."
Has anyone checked to see if one of those has, perhaps, gone unexpired all these two centuries now and might still be in force?
"Placing U.S. forces under a NATO command changes nothing. Even if the NATO Treaty could somehow authorize war, that treaty only requires nations to fight in response to an attack against the territory of a NATO member."
Considering that the commander of NATO is a U.S. Navy admiral (and a good guy, by all reports), this would be a rather thin fiction at best.
2 comments:
Consul, what about this theory (I don't necessarily buy it myself, but it's intruiging):
- The rebels are the legit gov't of Libya;
- Gaddafi is no longer the head of state, but basically a domestic and international criminal cooped up in one part of Libya;
- The USA, at the invitation of the legit gov't of Libya, is helping that gov't with its domestic criminal problem.
That would not be a "war" in the sense of one state using force against another state, right?
It might still trigger the War Powers Resolution, since it's a use of military force, but it would not trigger the Constitutional requirement for a declaration, since there is no state against which to declare.
What do you think?
JSM
(WV: solunr, as in "check the solunr tables before you go fishing in the Gulf of Sidra")
@JSM:
I think it's fair to say that the rebel government is, de facto and in terms of international law de jure, a legitimate government since it controls territory.
For the same reason, Qlphabet has the same status.
I don't see how we'd have any more (or less) legal basis for military intervention (because that's what it is) on the basis of a law enforcement request than a treaty-related (NATO, UN Charter) one, if that existed.
On such a basis we might use airstrikes against drug cartel strongholds in Central American countries, which is a touch Clancy-esque (even if worth considering).
Lastly, check your copy of the Constitution for any mention of "state(s)" relating to the power to declare war. I suspect that the implied construction is actually closer to "princes and potentates."
Cheers!
Post a Comment