The Daily Caller

The Daily Caller

The Libyan intervention is not wholly legal

Photo of David Kopel
David Kopel
Associate Policy Analyst, Cato Institute

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.

It is preposterous to use a euphemism like “kinetic military action” and claim that the military campaign against the Gaddafi regime is not a “war.” If any nation sent hundreds of missiles and bombs into the United States, all of them aimed at the American armed forces, the American people would of course consider this to be an act of war. And the stakes have increased with the authorization of covert operations within Libya by the president.

The fact that U.S. ground forces are not involved, at least not officially, does not turn Libya into a non-war. When the Japanese attacked Pearl Harbor, they used only airplanes and submarines, not ground forces. The American people rightly understood Pearl Harbor as an act of war.

In the view of America’s founders, international law permitted Just War, which included humanitarian intervention on behalf of rebels who had good cause to resist a foreign tyrant. All the international law philosophers to whom the founders looked for guidance — including Vattel, Puffendorf, and Grotius — thought so.

Nonetheless, the 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. For example, James Wilson, who would later be appointed by President George Washington to the Supreme Court, explained to the Pennsylvania ratifying convention:

“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives. . .”

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. A force of United States Marines, leading a coalition of North African allies, marched from Alexandria, Egypt in 1805, and captured the Tripolitanian port of Derna. The Bashaw of Tripoli quickly signed a peace treaty with the United States, ending the First Barbary War.

Today, some people prefer a “living Constitution” to originalism. If so, they should heed the 1973 War Powers Resolution, a federal law which requires the president to seek congressional consent upon introducing American forces into combat. If Congress does not consent, the forces must be withdrawn after, at most, 90 days.

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  • pic09

    That something is a violation of international law is important, I agree, but what is more important is a violation of U.S. law and that Obama has done. Furthermore, in this particular case, there are now widespread reports supporting what I wrote here at the beginning of Obama’s attack that the so-called “rebels” being supported by this war are in fact Al Qaeda.

    So, if for no other reasons and I believe there are other reason, Obama MUST be impeached for breaking U.S. law (only Congress can declare war) and supporting the terrorist organization Al Qaeda by breaking said U.S. law.

    Furthermore, for those of you arguing that this war had to be waged in order to protect the “civilians” where is there any evidence that Kaddafy was killing civilians. Almost all of these reports came directly from the State Department not from any, repeat, any independent journalistic investigation. Kaddafy said he was fighting Al Qaeda and many dismissed his statement. Now it appears that Kaddafy was right and all of you supporting the President were wrong. I hate that someone like Kaddafy can be more believable than our President. So lets do something to correct this evil juxtaposition and Impeach Obama now. That is the only way the left can reassert itself and save face. Obama is destroying the left and the Democratic Party and giving all kinds of firepower to the right; that is why the right feels emboldened and is proceeding as it is on all fronts to destroy

    Andy

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  • Sproing

    in.sinc…..A resolution by either the House or the Senate is not a binding piece of legislation. You might consider it as a recommendation but it is not a stamp of approval nor is it legislation since the House took no vote on the same piece of paper.

    In any case the power to issue a Declaration of War is, I believe, only given to the House of Representatives and not the Senate. Yes, I am an originalist, because I firmly believe as the founders also believed that the failure of governments was directly traceable to the failures of human beings. Their cure for that was to insure (and enshrine in the Constitution)the separation of powers and the checks and balances therein contained. They realized that any person when vested with too much unilateral power was a threat to the Democratic Republic they wished to form. They separated the powers at the Federal level and then further separated the Federal powers from the State powers and eventually resided the ultimate power with the electorate.

  • HenryBowman

    You write

    President Obama should immediately ask the United States Congress to declare war against the Gaddafi regime, or to pass a resolution authorizing the use of military force.

    Why not simply “President Obama should immediately halt hostilities against Libya, recognizing that going to war against Libya was both illegal and truly stupid.”

  • in.sink

    March 1, 2011-unanimously-here is the story, and below is the link

    Posted at 7:34 PM ET, 03/ 1/2011

    Senate passes Libya resolution

    The Senate passed Tuesday a resolution calling for the resignation of Moammar Gaddafi as well as new steps against the Libyan leader, including the possible establishment of a no-fly zone over Libyan territory.

    The resolution, sponsored by Sen. Robert Menendez (D-N.J.), was approved Tuesday night by unanimous voice vote. It calls on Gaddafi to “desist from further violence, recognize the Libyan people’s demand for democratic change, resign his position and permit a peaceful transition to democracy governed by respect for human and civil rights and the right of the people to choose their government in free and fair elections.”

    It also condemns the recent violence against civilians in the country and endorses the U.N. Security Council’s recent referral of the situation in Libya to the International Criminal Court.

  • Drahcir

    Then by the Constitution, the act that Obaama did was in fact an act of war without concent nor approval.Would this be the grounds for removal from office?Or at least a deep probe into his actions and from where his intel came from?