Back in mid-March, I wrote a tome about the situation in Libya. In it, I said the following:
The problem with the current debate regarding Obama’s actions in Libya is that people on the left are talking past each other. Lefties are conflating two debates: (1) a debate regarding whether or not it is proper for the United States to be mandated by treaties (which are the supreme law of the land and not subject to Congressional encroachment) to get involved in such critical humanitarian peacekeeping missions absent a polling of public opinion and absent authorization from Congress, and (2) a debate about the legality of what Obama is doing. The first debate is not a debate about Obama’s current actions in Libya; it’s a policy debate. It’s a debate about international law, and the United States’ place as a member of the international community and whether or not the UN is totally useless. As to the second debate, it seems to me that Obama is following the rules, at least as far as I can tell. If you want to complain about the rules, that’s cool. But that’s debate number 1. As to debate number 2, get off Obama’s back already. MIRITE?
Whelp, here we are three months later, still not talking about the United Nations Charter and still not talking about the role the United Nations should play in American foreign policy decisionmaking.
We are still arguing about whether or not Libya is JUST LIKE IRAQ!!!11one. (It’s not. Not even a little — the 2003 land-invasion of Iraq was not sanctioned by the Security Council.)
We are still listening to the musings — This War Is Illegal! — proffered by all sorts of constitutional law experts like Michael Moore, Dennis Kucinich, and Eugene Robinson.
And finally Glenn Greenwald, of course, is still claiming that This War Is Illegal!, having not at all addressed any of the issues regarding the interplay between Articles 42 and 43 which I raised in my post in March in response to his out-of-hand dismissal of those arguments.1 (Indeed, as could have been expected, Greenwald made and then half-assedly backed away from an argument that the US along with Britain and France launched this war for oil.)
So, I figured I’d wade in (again) only to be ignored (again, I’m sure).
In the comment section of John Cole’s latest post about Libya, commenter MomSense dropped this link — “War Powers and Executive Authority in the Libya Conflict” written by Jordan Paust. It is the perfect response to the Greenwalds and Kuciniches, and it encapsulates the “other side” of the argument.
Any fair reading of Praust’s article in conjunction with Greenwald’s posts reveals that the Libya Affair is not an easy question with easy answers, and that the answer to the Libya Affair necessarily involves disagreement about the relevant treaties and the manner in which those treaties dovetail with constitutional and statutory law (as Paust suggests in the second emphasized section below):
President Obama has decided that the US will continue to participate with other NATO members in military actions authorized by the UN Security Council in Resolution 1973 (March 17, 2011), which “[a]uthorizes Member States … to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in” Libya. The Security Council has authority to authorize such measures under Articles 39 and 42 of the UN Charter in response to “any threat to the peace, breach of the peace, or act of aggression.”
In this instance, the Council has decided that attacks on and continued threats to civilians and civilian populated areas in Libya “continue to constitute a threat to international peace and security” and the Council has decided to authorize all such protective measures, including the creation of a no-fly zone. The Security Council’s decision to authorize force is therefore binding on members under Articles 25 and 48 of the Charter, but because it merely authorizes force and does not require members to engage in such enforcement measures, each member has some discretion whether to join.
Although the US use of force in compliance with the Security Council resolution is permissible under international law, is President Obama’s continued use of force also permissible under our Constitution without special congressional approval? In my view, the answer is clearly yes.
Some have argued that US participation after 90 days violates the War Powers Resolution, but even a quick read of the congressional resolution demonstrates that this is not correct. First, one should note that Section 2(c) of the Resolution (setting forth its “Purpose and Policy”) merely speaks to the powers of the President as Commander-in-Chief and does not address the constitutionally-based powers of the President as the Executive under Article II, Section 1, of the Constitution. Additionally, it does not address the constitutionally-based duty and concomitant authority of the President under Article II, Section 3, to “take Care that the Laws be faithfully executed.” As the Executive with power and authority to execute laws, and especially with the unavoidable mandate that the President “shall take Care that the Laws be faithfully executed,” and given the fact that treaties of the United States (such as the UN Charter) are supreme federal laws, it is evident that the President has constitutionally-based authority to faithfully execute US competencies under the Charter outside of the President’s independent authority as Commander-in-Chief.
In any event, the War Powers Resolution contains its own set of limitations. One of these is found in Section 8(b), which allows members of the armed forces of the United States “to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established” previously “and pursuant to the United Nations Charter or any treaty ratified by the United States prior to” the War Powers Resolution. NATO is a relevant treaty-based organization, although whether its “high-level military” command was previously established for purposes of the statute or, for interpretive purposes, is merely established for each specific operation may lead to disagreement.
Another set of limitations is contained in Section 8(d)(1), which assures in pertinent part that “[n]othing in this joint resolution is intended to alter the constitutional authority of … the President, or the provisions of existing treaties.” As mentioned, the President’s authority involves the Executive power as well as the concomitant duty and authority faithfully to execute the laws, such as treaties of the United States. Execute is nearly the very name of Executive and, in any event, execute is encompassed within its meaning. The War Powers Resolution was not meant to alter these forms of constitutional authority and, as constitutionally-based presidential power, a mere federal statute or joint resolution could not do so.
Moreover, the War Powers Resolution is expressly intended to not alter the provisions of existing treaties and, therefore, it was not intended to alter provisions of the UN Charter or the North Atlantic Treaty establishing NATO. With respect to treaty law, in this instance the President has chosen on behalf of the United States to accept and execute the authorization contained in the UN Security Council resolution and engage in enforcement measures with respect to Libya. In so doing, the President has faithfully executed provisions of the UN Charter, including an outcome of that treaty’s continued functioning (e.g., the Security Council resolution and its legal authorization which are also last in time vis-a-vis the War Powers Resolution, constituting prevailing law). Faithfully executing the treaty is part of the President’s constitutionally unavoidable duty expressed in mandatory “shall” language and, more generally, this duty involving compliance with and faithful execution of a treaty of the United States happened to be of fundamental concern to the Founders and Framers.
The above is the debate I want to have. The argument about hostilities vs. not-hostilities seems silly, and I’m not sure where Obama is going with that one, frankly.
I recognize that — as my friend Mild-Mannered White Guy friend pointed out to me over the weekend — I am making an argument that Obama doesn’t seem to be making. I’m not sure “what’s going on in Libya doesn’t count as ‘hostilities’” is the best argument for the Obama administration to hang its hat on. It seems part and parcel of the spaghetti approach – throwing every argument agains the wall to see what sticks – but where’s the rest of the spaghetti? That’s what I’m wondering.
Why isn’t the Obama administation discussing the role of the UN?
I don’t know.
I’m not buying the “not hostilities” argument, though, and the only reason I can fathom that the Administration isn’t making an argument about the UN is because it doesn’t want to draw the attention of the Westphalian Hive Mind School of Thought (as represented by the oddly-mustachioed John Bolton) that the UN should just be another arm of the US government, and that the US should not be obliged to step in for humanitarian purposes when warranted. (Of course we can still step in when we want to because why not, that’s why.)
What do I mean by that? Well, watch this video:
This is the Bolton state of mind:
There is no United Nations. There is an international community that occasionally can be led by the only real power left in the world — and that’s the United States — when it suits our interests, and when we can get others to go along.
This kind of mindless creation of the United Nations as something different from what it’s in the United States’ interest to do isn’t going to sell here or anywhere else.
In short, maybe the Obama administration does not want to have a fight about multilateralism. Not now. Not with this Congress. Like I said, I don’t know.
It’s clear, however, that Obama is taking political heat from both sides on this Libya business and that he is going forward anyway. I, unlike Greenwald, am not convinced this is a power grab. Could it be? Sure. Am I wrong? Maybe. I’ll have no problem admitting so if it turns out that I am wrong.
I do think that whatever his/our Ultimate Motive for this Libya SortaMaybeWar, Obama recognizes that the last thing the GOP wants to do is curtail the executive’s ability to make war, so he intends to continue to work with France and Britain in carrying out this war-like thing going on in Libya while staring down Congess and forcing it to blink – and by blink, I mean vote to defund the operation and in so doing, set forth arguments that will inure to the detriment of the next Republican president.
I also think that both sides of this debate (in Blogistan and the media) are going to continue to talk past each other, using the same exact news reports to bolster their claims. On the one hand, folks will point to reports from Libyan rebels via Western journalists that Qadaffi loyalists are using rape as a weapon of war as evidence that we are doing the right thing by heeding Libyans’ cry for help (It’s hard to deny that the folks in Benghazi were crying for help). On the other hand, folks will point to those same reports and call them propaganda, akin to the “babies in incubators” hoax. And never the twain shall meet.
So what’s really happening? What’s true? How much of what is true now will be true in six months? These are questions one has to ask given this country’s penchant for bombing shit.
In the end, I don’t know. I don’t know much more than I knew in March.
I know one thing: there is no easy answer to the Libya Question; it’s an excruciatingly close call, and anyone screaming about ILLEGAL WAR! and WAR FOR OIL! all the while ignoring the complex questions of international law involved — especially when that person is a lawyer — is selling something.
1 Yes, I’m sure he’s verrah busy and cannot concern himself with the questions of someone as crazy and offensive as I am, but I ain’t the only one askin’ here.