Wednesday, June 1, 2011

Libya, War Powers Act and International Law

My final post on Libya and the legality of the US actions under international law and the US Constitution – because I have read too much drivel lately from diletantes…

First, although the War Powers Act has forced US Presidents to consult with, and report to, Congress when U. S. armed forces are used in combat situations it has never significantly limited the President's practical power to commit the United States to use military force.  Furthermore, Congress likes the loose language in the Act because it allows them to punt.  They do not need to declare war – thereby putting their necks on the line.

Second, I have read numerous posts – usually in the comment sections, which interpret the legality of the US actions solely by quoting a specific provision of the War Powers Act without taking  into consideration either the US Constitution, treaty law or reality.  Rather, those opposed to any military action by the US unless Congress approves tend to grab and hold the following this provision from said Act:

“(c) Presidential executive power as Commander-in-Chief; limitation

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

Let’s just analyse the provision and see how the facile interpretation of a paragraph, in what might be argued as an unconstitutional law in any event, is wrong.

First, and perhaps the weakest argument, is the question of national emergency. But, it very credible to argue that this was a national emergency, given the numerous US bases in the Middle East, and the fact that the US embassy in Libya was evacuated under threat of attack.  Perhaps not a strong position under (3), but credible nonetheless. But that is the least important point.

The more important concern is whether there existed unambiguous statutory authorization under (2). Frankly, the statutory authorization for taking action in Libya and involving US forces is clear - the UN Security Council resolution.

US law authorizes the President to negotiate a special agreement or agreements with the Security Council which is subject to the approval of Congress (22 U.S.C. § 287d). The agreement or agreements may provide for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with Article 43 of the Charter.  Under 22 U.S.C, the President is not required to seek or obtain Congressional authorization pursuant to such special agreement or agreements to make available to the Security Council the armed forces, facilities, or assistance provided on its call in order to take action under Article 42 of the Charter. 
Furthermore, Congress has specifically found that using forces under orders from the Security Council is a peacekeeping and enforcement activity rather than act of war; therefore, using US forces within the parameters and missions of those actions neither violate Congress' constitutional prerogative to declare war, nor require specific congressional authorization under the War Powers Act or otherwise.
Finally, under the supremacy clause of the US Constitution, international treaties are in and of themselves legally binding, and along with the body of the Constitution itself, become the supreme law of the land.
The UN Charter is an international treaty to which the US is bound pursuant to the Constitution.  The Security Council resolution was not an act of war – regardless of how opponents would like to characterize it for political purposes.
Then, of course let’s not forget the other applicable treaty: NATO.  For the sake of argument, even if we accept the legally incorrect interpretation that the War Powers Act applied to Libya at the time US forces first began enforcing the Security Council resolution, the fact remains that 8 or 9 days later, on 4 April, the whole operation was placed under the command of NATO.  U.S. involvement was restricted to background noise: support to the NATO-led operation with intelligence, logistical support, and search and rescue assistance and aircraft assisting with the suppression and destruction of air defences in support of the no-fly zone as well as (from 23 April), precision strikes by UMVs in support of the NATO efforts.  The notion that the War Powers Act supersedes yet another international treaty approved by Congress is so absurd as to reveal the true nature of anti-interventionists endless complaints – political points and a dislike of any type of military intervention – nothing more.

Furthermore, by pointing to the 60 day deadline under the War Powers Act, which is nevertheless overridden by the UN resolution and NATO treaty obligations, many critics conveniently ignore that the first notification to Congress establishing the date for running the clock on the 60 days is irrelevant or, at worst debatable in connection with the effectiveness of the War Powers Act provision since President Obama’s notification applied to a different action.  That mission ended before the 60 days expired and exactly at the point when it was turned over to NATO.  The US can choose or not, in these circumstances, to take part in the NATO operation (as Germany declined to do from a military standpoint).  But, that is a completely different and is a political, not legal, discussion.  In any event, from a legal standpoint the War Powers Act - even assuming it would apply - would have been automatically extended with Obama’ second notification to Congress. 
It is also legally questionable whether the War Powers Act can constitutionally restrict any and all orders the President issues to the military, no matter how limited.  Whether you like it or not, legally the President of the US has constitutional authority as Commander-in-Chief and he has the only authority to conduct foreign policy – particularly under approved international treaties. 

Interpretation of international and domestic treaties and laws respectively in a vacuum is a dangerous proclivity best left to the media whose purpose is to simplify concepts so that they can be easily absorbed by a credulous public.

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