Why Congress Played No Role in the Libya Intervention

Eric Posner
The Volokh Conspiracy

Congress’ reaction to President Obama’s decision to launch a military intervention in Libya has been supine even by Congress’ usual standards. Congress vigorously debated and refused to authorize President Clinton’s military intervention in Kosovo in 1999 (Clinton intervened anyway). Congress debated and authorized the attacks on Afghanistan in 2001 and Iraq in 2003. Yet Congress has been mostly silent about the intervention in Libya. Why?

President Obama is following a long line of precedents in which the executive lanched a foreign war without congressional authorization. The president disavowed these precedents during his campaign; he may or may not attempt to distinguish his campaign statement by invoking the UN security council resolution authorizing the attack, as Truman did for Korea…

…We live in a system of executive primacy, as Adrian Vermeule and I have argued in our new book, The Executive Unbound: After the Madisonian Republic. It is a consequence of natural institutional developments and necessities. The contrary view, which was written into the U.S. Constitution, could survive only as long as the United States was protected by two oceans from foreign threats and could focus on territorial expansion within a continent populated only by Indians, who were never a major threat—and even then it was honored more in the breach than in the observance. Those who are skeptical about the Libya intervention should address their policy arguments to the executive, and stop complaining that Congress has not authorized the war. Here is Jack Goldsmith arguing that Obama will invoke the UN Security Council resolution as his legal justification (why this is necessary after Clinton’s Kosovo intervention, which had no such resolution, is not explained); here is Andrew Sullivan arguing that Congress should do something, anything (“A congressional vote is also important to rein in the imperial presidency that Obama has now taken to a greater height then even Bush.”); and here is Ilya Somin’s post on the topic yesterday describing the protests of “several” (nine!) members of Congress.

The complete article is at The Volokh Conspiracy.

At GretaWire, Greta Van Susteren has a copy of the letter President Obama sent to Congress today, advising them of his actions in Libya. It begins:

THE WHITE HOUSE Office of the Press Secretary

For Immediate Release March 21, 2011


March 21, 2011

Dear Mr. Speaker: (Dear Mr. President:)

At approximately 3:00 p.m. Eastern Daylight Time, on March 19, 2011, at my direction, U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya. As part of the multilateral response authorized under U.N. Security Council Resolution 1973, U.S. military forces, under the command of Commander, U.S. Africa Command, began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone. These strikes will be limited in their nature, duration, and scope. Their purpose is to support an international coalition as it takes all necessary measures to enforce the terms of U.N. Security Council Resolution 1973. These limited U.S. actions will set the stage for further action by other coalition partners.

United Nations Security Council Resolution 1973 authorized Member States, under Chapter VII of the U.N. Charter, to take all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya, including the establishment and enforcement of a “no-fly zone” in the airspace of Libya. United States military efforts are discrete and focused on employing unique U.S. military capabilities to set the conditions for our European allies and Arab partners to carry out the measures authorized by the U.N. Security Council Resolution….

Related: Putin likens U.N. Libya resolution to crusade calls

VOTKINSK, Russia (Reuters) – Russian Prime Minister Vladimir Putin Monday likened the U.N. Security Council resolutionsupporting military action in Libya to medieval calls for crusades.

Putin, in the first major remarks from a Russian leader since a coalition of Western countries began air strikes in Libya, said that Muammar Gaddafi’s government fell short of democracy but added that did not justify military intervention.

“The resolution is defective and flawed,” Putin told workers at aRussian ballistic missile factory. “It allows everything. It resembles medieval calls for crusades.”…

Update: A video report from CNN dated 3/13, “China is using the crisis in Libya to showcase its new naval might. CNN’s Fareed Zakaria reports.”

H/T Quahog Campaigner on Facebook

Update 2: David Weigel smugly mouths a most despicable theory of presidential power, at Althouse:

…It’s not about your feelings or Congress’s avoidance of formal gestures. Either there is a serious constitutional safeguard here or there is not. If there is, it doesn’t disappear because you are comfortable without it or because Congress holds back. If there is a constitutional safeguard, it is a permanent guarantee that goes to us, the people.

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