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Is the US and NATO mission in Libya legal and justifiable?

Background and context

The United States initiated military operations in Libya in early March of 2011, with a broad international coalition under NATO command, in order to defend civilians engaging in a popular revolution against Muammar Qadhafi. The brutal suppression and murder of these civilians by Qadhafi's regime led to calls by the Arab League for NATO action as well as UN Resolution 1973, which authorized the limited mission of protecting Libyan civilians with a no-fly zone.
The US and NATO attempted to execute this mandate by bombing select pro-Qaddafi forces and munitions and maintaining air superiority over the country. The US formally transferred command of these operations to NATO on April 1st. The conflict continued apace through June. During this period, it become clear that the US and NATO mission had extended beyond simply protecting civilians to regime change. This has included the active military support of anti-Qadhafi fores as well as targeted bombing campaigns. An international debate has followed these events. Many in the US have claimed that President Obama needed Congressional approval after 60 days of the conflict, in accordance with the War Powers Act. But the President has argued that this law, passed in the wake of the Vietnam War, does not apply because US engagement does not rise to the level of "hostilities" contemplated by the law. Other questions concern whether the war has extended beyond the UN mandate and whether the engagement is even worthwhile for NATO, the US, and the wider world. The pros and cons in this contentious debate are considered below.
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Hostilities: Is US engaged in "hostilities" under War Powers?

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Pro

  • US action in Libya does not amount to hostilities/war Obama Administration letter to Congress justifying Libya engagement, June 15th, 2011: "The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors."
  • US ground forces not engaged in hostilities in Libya. This is a critical factor in whether US actions can be considered "hostilities". If no troops are engaged in hostile fire, than generally military actions should not be considered "hostilities" in the spirit of the War Powers Act, which was created in reaction to the large-scale US commitment of troops in Vietnam.
  • US maintained limited role in Libya campaign. Text of Obama's Speech On Libya: "A Responsibility To Act." NPR.org. March 28th, 2011: "we've accomplished these objectives consistent with the pledge that I made to the American people at the outset of our military operations. I said that America's role would be limited; that we would not put ground troops into Libya; that we would focus our unique capabilities on the front end of the operation and that we would transfer responsibility to our allies and partners. Tonight, we are fulfilling that pledge."
  • US gave full command in Libya to NATO on April 1 Obama Administration letter to Congress justifying Libya engagement, June 15th, 2011: "At the onset of military operations, the United States leveraged its unique military capabilities to halt the regime’s offensive actions and degrade its air defense systems before turning over full command and control responsibility to a NATO-led coalition on March 31. Since that time: Three-quarters of the over 10,000 sorties flown in Libya have now been by non-U.S. coalition partners, a share that has increased over time. All 20 ships enforcing the arms embargo are European or Canadian. The overwhelming majority of strike sorties are now being flown by our European allies while American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets, all within the UN authorization, in order to minimize collateral damage in urban areas. The United States provides nearly 70 percent of the coalition’s intelligence capabilities and a majority of its refueling assets, enabling coalition aircraft to stay in the air longer and undertake more strikes."
  • US merely supporting NATO; War Powers inapplicable Obama Administration letter to Congress justifying Libya engagement, June 15th, 2011: "The President has honored his commitment to focus the preponderance of our military effort on the front end of operations in Libya, using our unique assets to destroy key regime military targets and air defense capabilities in order to establish a no-fly zone and enable protection of civilians as part of the enforcement of UNSCR 1973. These actions set the conditions so that, after a limited time, command of these operations transferred to NATO. Since that April 4 transition, U.S. military involvement has been limited to a supporting role, enabling our allies and partners to ensure the safety of Libyan civilians."
  • Under $1b in spending can hardly be called a 'war.' Compared to the hundreds of billions of dollars that have been spent in Afghanistan and Iraq, the couple hundred million dollars being spent in the Libyan campaign can hardly rise to the level of a "war." This is why the Pentagon has a discretionary budget of $1b for urgent military matters that do not require Congressional approval.
  • Regime change is not a military objective in Libya.Text of Obama's Speech On Libya: "A Responsibility To Act." NPR.org. March 28th, 2011: "Of course, there is no question that Libya — and the world — would be better off with Gadhafi out of power. I, along with many other world leaders, have embraced that goal, and will actively pursue it through non-military means. But broadening our military mission to include regime change would be a mistake. The task that I assigned our forces — to protect the Libyan people from immediate danger, and to establish a no-fly zone — carries with it a U.N. mandate and international support. It's also what the Libyan opposition asked us to do. If we tried to overthrow Gadhafi by force, our coalition would splinter. We would likely have to put U.S. troops on the ground to accomplish that mission, or risk killing many civilians from the air. The dangers faced by our men and women in uniform would be far greater. So would the costs and our share of the responsibility for what comes next."


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Con

  • US is clearly engaged in sustained hostilities in Libya Glenn Greenwald. "The illegal war in Libya." Salon. May 19th, 2011: "It was equally clear from the start that this Orwellian-named 'kinetic humanitarian action' was, in fact, a 'war' in every sense, including the Constitutional sense, but that's especially undeniable now. While the President, in his after-the-fact speech justifying the war, pledged that 'broadening our military mission to include regime change would be a mistake,' it is now clear that is exactly what is happening. 'Regime change' quickly became the explicit goal. NATO has repeatedly sought to kill Gadaffi with bombs; one attack killed his youngest son and three grandchildren and almost killed his whole family including his wife, forcing them to flee to Tunisia. If sending your armed forces and its AC-130s and drones to another country to attack that country's military and kill its leader isn't a 'war,' then nothing is."
  • War Powers covers US forces playing supporting role in wars. Text of War Powers, Interpretation of Joint Resolution: "For purposes of this chapter, the term 'introduction of United States Armed Forces' includes 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."[1]
  • Troops needn't be on ground to call Libya engagement war. David Bromwich. "The Bipartisan Case Against U.S. Involvement in Libya." The Huffington Post. June 20th, 2011: "Jason Linkins has summed up [the White House's] legalistic peculiarity: 'If forces from the United States aren't actually dying, it's not a war, never mind the fact that U.S. forces are, nevertheless, actively engaged in an attempt to kill people.' By the same logic that says a one-sided air war is not a war, a president may launch hundreds of missiles against an enemy on his own initiative, so long as the targets have no means of retaliation. [...] How to account for the sophistry of this attempt to placate Congress by pretending that the Libya War is not a war? The Obama White House, it would seem, is creating an executive license for purely offensive wars, so long as no American casualties are incurred."
  • Obama implies drone warfare OK without Congr approval. Jacob Sullum. "Why Obama’s stand on Libya is absurd." Chicago Sun Times. June 21st, 2011: "According to the administration’s logic, Congress has no say over the president’s use of the armed forces as long as it does not involve boots on the ground or a serious risk of U.S. casualties — a gaping exception to the legislative branch’s war powers in an era of increasingly automated and long-distance military action. As Harvard law professor Jack Goldsmith, a former head of the OLC, told the Times, 'The administration’s theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution’s time limits.'"
  • US is committing acts of war in Libya; War Powers apply. Tufts University law professor Michael Glennon, who has studied the U.N. Charter, compares Obama joining the coalition against Muammar Gaddafi with Harry Truman’s unilateral decision to enter the fight that turned into the Korean War. “If you don’t call it a war, you can just bypass the constitutional requirements of starting a war. That’s a totally bogus argument.” He points out that the length and scope of the conflict may not matter - a missile launched against another country could be considered an act of war, even though it only took a handful of minutes and a couple million dollars. Acts of war are clearly just as important as full-blown wars, so are covered by the War Powers.
  • US has lead role in NATO in Libyan war. Bruce Ackerman and Oona Hathaway. "Death of the War Powers Act." Washington Post. May 17th, 2011: "American planes and drones continued their bombing long after the April turnover — and the drones are still flying over Libya. Since the cost of the mission is at three-quarters of a billion dollars and climbing, it is sheer fiction to suggest that we are no longer a vital player in NATO’s 'Operation Unified Protector.' This is especially so when an active-duty American officer remains at the top of NATO’s chain of command. As supreme allied commander, Adm. James Stavridis 'leads all NATO military operations.' While a Canadian air force general, Charles Bouchard, is in charge of the Libyan campaign, the buck doesn’t stop with him but with Stavridis, who also reports to the Pentagon as head of the U.S. European command. Even if American drones discontinue their operations before the deadline, an American admiral will still be in a position to call the shots."
  • Costs of engagement in Libya help show it's a war. Dem Rep Dennis Kucinich April 19th letter to colleagues on Libya conflict regarding introduction of legislation that will assert Congress’ constitutional responsibility to make decisions about declaring war: "The costs of this war are already mounting. According to figures recently released by the Pentagon, the war has cost the U.S. $608 million thus far, not including the costs to deploy U.S. Armed Forces to participate in the war in Libya. Experts at the Center for Strategic and Budgetary Assessments believe that the U.S. costs could “easily pass the $1 billion mark…regardless of how well things go.”[2]


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US law: Is intervention consistent with other factors of US law?

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Pro

  • US needn't have been attacked to use force in Libya. Some argue that the US wasn't attacked, so the president had no authority to use force. This, however, is too narrow an interpretation. There are many instances where vital US values and interests are at stake and must be defended. In this case, the interest in protecting civilians from mass slaughter and preventing a tyrant from winning a victory in the midst of the Arab Spring constituted a legitimate interest for the use of force.
  • Pres has authority to commit to non-war military action. The War Powers Resolution says that it is not "intended to alter the constitutional authority of the Congress or of the President." As the Commander and Chief, the President does have the authority to commit the US to military action that stops short of war that is deemed by the president as critical to US national interests. This is reflected in the Pentagon's ongoing $1b budget for discretionary, urgent military engagements. Libya falls within this category completely, so is well within the Obama's Constitutional authority.
  • UN Resolution prevents escalation of Libya mission. There is little risk of the military mission in Libya escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians. The War Powers Act was designed to counter such mission creep, as it occurred in Vietnam. But, since there is virtually no risk of this occurring in Libya, the spirit of the War Powers act can hardly be said to apply.
  • Even regime change goals in Libya have moral legitimacy. Obama Administration letter to Congress justifying Libya engagement, June 15, 2011: "A growing chorus of international voices has now called for Qadhafi’s departure, including the G8, the Contact Group representing more than 20 countries, Russian President Medvedev, Turkish Prime Minister Erdogan, and several key African leaders such as the Presidents of Gabon, Mauritania, and Senegal. This growing consensus and Qadhafi’s control of less and less of Libya indicate that his departure is only a matter of time."
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Con

  • Libya didn't attack US; President not authorized for war Bruce Ackerman. "Obama's Unconstitutional War." Foreign Policy. March 24th, 2011: "After the Vietnam War, Congress passed the War Powers Resolution, which granted the president the power to act unilaterally for 60 days in response to a 'national emergency created by attack upon the United States, its territories or possessions, or its armed forces.' The law gave the chief executive an additional 30 days to disengage if he failed to gain congressional assent during the interim. But, again, these provisions have little to do with the constitutionality of the Libyan intervention, since Libya did not attack our 'armed forces.' The president failed to mention this fundamental point in giving Congress notice of his decision on Monday, in compliance with another provision of the resolution. Without an armed 'attack.' there is no compelling reason for the president to cut Congress out of a crucial decision on war and peace."[3]
  • Libya war illegally circumvents Congr approval Reps. Dennis Kucinich and Walter Jones filed a lawsuit against President Obama in federal court against President Obama to “challenge the commitment of the United States to war in Libya absent the required constitutional legal authority [...] the executive branch’s circumvention of Congress and its use of international organizations such as the United Nations and the North Atlantic Treaty Organization to authorize the use of military force abroad, in violation of the Constitution.”[4]


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International authority: Does mission have sufficient i-authority?

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Pro

  • US engagement in Libya has UN/NATO legal authorization. James Joyner: "While one can debate the degree to which the presidency is imperial, it’s simply untrue that the war in Libya is illegal in any shape, manner, or form. It’s being conducted under the auspices of both the UN Charter and the North Atlantic Treaty, which rather covers it internationally."[5]
  • US joined international coalition in Libya Democratic strategist Steve McMahon: “Lots of people have been calling on the president to [set up a no-fly zone], and when the U.N. did it, the White House said America’s in as part of a coalition. It’s the most responsible walk-up to military action that I’ve seen from a president in a long time.”[6]
  • US/NATO has authorization of Middle East states. The US gained the official support, or call for help, from the Arab League before acting in Libya. This added a critical layer of legitimacy and thus legality to the operation, particularly due to the sensitivities of Arab countries to Western military operations in their region.
  • US/NATO have acted consistent with UN Res 1973. Obama Administration letter to Congress justifying Libya engagement, June 15, 2011: "In the intervening weeks and months, coalition efforts have been effective in protecting the Libyan population. The regime has suffered numerous defeats, cities and towns across Libya have been liberated from brutal sieges, strong sanctions are in place, and the regime is encountering serious difficulties raising revenues through oil sales or other means. All these actions and outcomes are consistent with UNSCR 1973."



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Con

  • US Libyan intervention wrongly rests on NATO authority. The lawsuit against President Obama aims to protect the American public from, in addition to avoidance of the War Powers Act, the policy that a president may commit the United States to a war under the authority of the North Atlantic Treaty Organization (NATO) in violation of the express conditions of the North Atlantic Treaty ratified by Congress.[7]
  • UN approval for Libyan engagement dilutes US authority. "EDITORIAL: Obama’s illegal war." The Washington Times Editorial. March 18th, 2011: "The president cannot be seen as a mere instrument of the United Nations, which would relegate the U.S. Constitution to second-class status behind the U.N. Charter. If U.S. troops are going to be put in harm’s way, the authority must come from elected representatives in Washington, not from a bunch of international bureaucrats hanging out in Turtle Bay."
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US interests: Is Libya intervention critical to US interests?

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Pro

  • Libya mission prevented refugees flooding Tunisia/Egypt. Text of Obama's Speech On Libya: "A Responsibility To Act." NPR.org. March 28th, 2011: "America has an important strategic interest in preventing Gadhafi from overrunning those who oppose him. A massacre would have driven thousands of additional refugees across Libya's borders, putting enormous strains on the peaceful — yet fragile — transitions in Egypt and Tunisia."
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Con

  • Libyan engagement wrongly uses previously appropriated Cong. funds. The lawsuit against President Obama aims to protect the American public from the use of previously appropriated funds by Congress for an unconstitutional and unauthorized war in Libya or other countries.[8]


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Humanitarian: Has US action been humanitarian?

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Pro

  • US involvement critical to protecting Libyan civilians. The report released Wednesday said that if the U.S. were to end its participation in the NATO operation, it would "seriously degrade the coalition's ability to execute and sustain its operations to protect Libyan civilians."[9]
  • US action in Libya lives-up to memory of Rwanda. After Rwanda, the world said "never again." The Obama administration's action in Libya to protect massacres of civilians are consistent with this call and the values that under-pin it.
  • US action in Libya is humanitarian, not aggression. Some have acted as though the mission is an aggressive war. Rather, all actions taken, even those aimed at disabling Qadhafi forces, have been aimed at protecting civilians and their long-term prosperity.



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Con

  • Justifications for Libya war irrelevant to Congressional authority. Dem Rep Dennis Kucinich April 19th letter to colleagues on Libya conflict: "While we may not all agree on the merits of military intervention in Libya, we can all agree that Congress must have the opportunity to have a full and ample debate on the commitment of U.S. Armed Forces to a war abroad. The Constitution is clear: Article 1, Section 8 provides only Congress with the ability to declare war or authorize the use of military force."
  • War in Libya is a war of aggression. Jacob Zuma, South Africa's president, called the US/NATO campaigns in Libya a "war of aggression" with "regime change, political assassinations and foreign military occupation."[10]


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Timing: Did Obama have too little time to seek Congr approval?

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Pro

  • No time for Congressional approval for initial action. Obama Administration letter to Congress justifying Libya engagement, June 15th, 2011: "As his troops continued pushing toward Benghazi, a city of nearly 700,000 people, Qadhafi again defied the international community, declaring, “We will have no mercy and no pity.” At that moment, as the President explained in his speech to the nation on March 28: “We knew that if we waited one more day, Benghazi could suffer a massacre that would have reverberated across the region and stained the conscience of the world.” Stopping a potential humanitarian disaster became a question of hours, not days. The costs of inaction would have been profound. Thousands of civilians would very likely have been slaughtered, a ruthless dictator would have been triumphant precisely at a time when people across the region are challenging decades of repression, and key U.S. allies, including Egypt and Tunisia, would have been threatened by instability on their borders during a critical point in their own transitions toward a more promising future."


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Con

  • Obama had time to seek Congressional approval on Libya. Bruce Ackerman. "Obama's Unconstitutional War." Foreign Policy. March 24th, 2011: "in the Libyan case, the president had plenty of time to get congressional support. A broad coalition -- from Senator John McCain to Senator John Kerry -- could have been mobilized on behalf of a bipartisan resolution as the administration engaged in the necessary international diplomacy. But apparently Obama thought it more important to lobby the Arab League than the U.S. Congress."
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Consultation: Was Congress appropriately consulted on Libya?

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Pro

  • Obama administration consulted with Congress on Libya Obama Administration letter to Congress justifying Libya engagement, June 15th, 2011: "The Administration has consulted extensively with Congress about U.S. engagement in Libya. Since March 1, the Administration has: testified at over 10 hearings that included a substantial discussion of Libya; participated in over 30 Member and/or staff briefings, including the March 18 Presidential meeting with Congressional Leadership, Committee Chairs and Ranking Members; all three requested 'All Members Briefings' (two requested by the Senate, one by the House); and all requested 'All Staff Briefings;' conducted dozens of calls with individual Members; and provided 32 status updates via e-mail to over 1,600 Congressional staff."
  • Senate voted for UN Libya Res and Obama has enforced it. Obama Administration letter to Congress justifying Libya engagement, June 15th, 2011: "Rather than respond to the international community’s demand for an end to the violence, Qadhafi’s forces continued their brutal assault against the Libyan people. On March 1, the U.S. Senate passed a resolution that “condemn[ed] the gross and systematic violations of human rights in Libya, including violent attacks on protestors” and urged that the United Nations take action to protect civilians in Libya from attack, including by imposing a no-fly zone."
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Con

  • Obama needed to consult all of Congress, not just leaders. Robert Cottrol, a Constitutional law professor at George Washington University: "The actions in Libya are constitutionally problematic because there wasn’t a consultation of the whole Congress, only the leadership."[11]


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Politics: The various political arguments involved:

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Pro

  • Republicans criticize Libya campaign to score political points. Chris Lehane, a Clinton White House veteran accustomed to handling political crises: “On the Republican side, they’re putting their heads up to score political points. It almost reminds me of a heads-I- win, tails-you-lose kind of situation.”[12]
  • Cong. opposition to Libya campaign undermines effort. White House spokesman Jay Carney said the president expects Congress to support the Libya campaign. With Gadhafi under pressure to leave power, he said weak Congressional support sends "mixed messages" about U.S. commitment to the campaign.[13]


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Con

  • President's action in Libya violates his campaign pledges. Bruce Ackerman. "Obama's Unconstitutional War." Foreign Policy. March 24th, 2011: "Many modern presidents have made such claims, and Harry Truman acted upon this assertion in Korea. But it's surprising to find Obama on the verge of ratifying such precedents. He was elected in reaction to the unilateralist assertions of John Yoo and other apologists for George W. Bush-era illegalities. Yet he is now moving onto ground that even Bush did not occupy. After a lot of talk about his inherent powers, Bush did get Congress to authorize his wars in Afghanistan and Iraq. Now, Obama is putting Bush-era talk into action in Libya -- without congressional authorization."


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Pro/con sources

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