It's Not Up to the President to Impose a No-Fly Zone Over Libya

[slipslidingaway]

http://www.huffingtonpost.com/bruce-ackerman/no-fly-zone-libya_b_833426.html

Bruce Ackerman and Oona Hathaway are professors of law and political science at Yale. They expand on their sunset proposal in a recently published article in the Michigan Law Review.

I do not see the expanded article yet at the Michingan Law Review link.
http://www.michiganlawreview.org/information/about/articles


"As Gaddafi continues to slaughter civilians, America is fast approaching its own moment of truth. Despite its antiseptic label, imposing a "no-fly" zone is an act of war. As Secretary Gates explained last week, it "begins with an attack on Libya to destroy the air defenses." The president has gathered his advisers to decide how to proceed. But the Constitution gives Congress, not the president, the power "to declare war."

The president does have the constitutional power to repel attacks on the homeland, but nobody suggests that Gaddafi's assault on his domestic enemies is a threat to the United States. An attack on Libya's air defenses would be a war of choice, not self-defense.

No existing statute or treaty allows this action. Gaddafi isn't linked to Al Qaeda, so an attack against him isn't supported by the resolution authorizing force against terrorists involved in 9/11. If Obama goes it alone, he must return to Bush-era assertions that the president, as commander-in-chief, can unilaterally launch the nation into war.

Upon taking office, President Obama immediately withdrew opinions written by John Yoo and others making these extreme claims. And his Justice Department has refrained from asserting unilateral presidential power in the conduct of the wars Obama has inherited: Iraq, Afghanistan, and the drone attacks in Pakistan and Yemen.

But Libya would be Obama's war. If he acts unilaterally, he will be consolidating one of the worst aspects of the Bush era, and set a precedent for further abuses by future presidents..."

[Davis_X_Machina]

1. When was this written?

"If Obama goes it alone, he must return to Bush-era assertions that the president, as commander-in-chief, can unilaterally launch the nation into war."

"If he acts unilaterally, he will be consolidating one of the worst aspects of the Bush era, and set a precedent for further abuses by future presidents..."

I don't believe he actually acted unilaterally....

[shraby]

2. He isn't acting unilaterally. He's acting in tandem with other

countries and also has 60 days to request permission from Congress. Check the war powers act.

[mmonk]

30. Unilaterally as in terms of government.

The War Powers Resolution applies to if the United States is already under attack or serious threat. That standard hasn't been met.

[slipslidingaway]

35. The War Powers Act ...

http://en.wikipedia.org/wiki/War_Powers_Resolution

"The War Powers Resolution of 1973 (50 U.S.C. 1541–1548) was a United States Congress joint resolution providing that the President can send U.S. armed forces into action abroad only by authorization of Congress or if the United States is already under attack or serious threat..."

Where is the attack or threat from Libya to the US.

:shrug:

[Junkdrawer]

5. There was a war resolution passes in Congress then?

Because in this context, unilateral means without Congress.

[slipslidingaway]

7. Exactly my interpretation. n/t

[emulatorloo]

10. See post 6.

This article is old and out of date.

[Jamastiene]

37. Looks like he talked to several other groups, but not Congress.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=439x699798

Presidents of the US, apparently, can just do that. I sure miss the U.S. Constitution, when it used to mean something to anyone. :(

[slipslidingaway]

9. 3/9 but as was mentioned below unilaterally in this context may ...

well mean without the consent of Congress.

[emulatorloo]

3. UN Security Council Resolution 1973 on Libya - Full Text

http://www.guardian.co.uk/world/2011/mar/17/un-security-council-resolution

[Davis_X_Machina]

24. Ongoing expert discussion...

..of UNSC resolution here, at Crooked Timber.

There are important changes between this UNSC resolution and similar ones from earlier conflicts.

[ProSense]

4. This ignores the U.N. action

probably because it was written March 9. There was no unilateral declaration of war. Still

<...>

But Libya would be Obama's war. If he acts unilaterally, he will be consolidating one of the worst aspects of the Bush era, and set a precedent for further abuses by future presidents.

There is still time to take the constitutional path. As Secretary of State Clinton recently explained, "no decisions have been made and for good reason. Because it is not at all clear yet what the situation demands." And Congress is likely to give the president its strong bipartisan support. John Kerry, chairman of the Senate Foreign Relations Committee, recently said that "we should be ready to implement as necessary." Senator John McCain has gone further: "Don't tell me we can't do a no-fly zone over Tripoli."

The key question is not whether Congress will consent, but how it should limit its grant of authority. As Iraq shows, presidents can manipulate a poorly drafted Congressional authorization to escalate a war long after its original rationale has disappeared. It is one thing to approve a "no-fly zone"; quite another to authorize another decade-long effort at state-building once Gaddafi loses power.

To guard against mission creep, Congress should limit its no-fly resolution to a six month period. Conditions in Libya will be very different then, and it will be time for another round of debate. Congress can guarantee continuing oversight by stipulating that its current authorization expires on a fixed date. If the president wants the "no-fly" zone to continue, he will have to reopen the discussion, and convince Congress, and the American people, that the further use of force makes sense.

<...>

They want Congress to authorize a six-month no-fly zone?

[slipslidingaway]

Obama on presidential war-making powers - Greenwald (after the UN resolution)

http://www.salon.com/news/opinion/glenn_greenwald/index.html?story=/opinion/greenwald/2011/03/18/libya

"The U.N. Security Council Resolution authorizing military force in Libya does not, on its face, compel U.S. involvement, but news reports (and common sense) suggest that American participation is likely. That has led to debates over whether the President is constitutionally empowered to order military action in Libya without Congressional approval, whether it be in the form of a declaration of war or at least some statutory authorization to use military force (my views on the substance of this new war are here).

I will simply never understand the view that the Constitution allows the President unilaterally to commit the nation to prolonged military conflict in another country -- especially in non-emergency matters having little to do with self-defense -- but just consider what candidate Barack Obama said about this matter when -- during the campaign -- he responded in writing to a series of questions regarding executive power from Charlie Savage, then of The Boston Globe:

...

Obama's answer seems dispositive to me on the Libya question: "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." And he went on to say that the President could constitutionally deploy the military only "in instances of self-defense." Nobody is arguing -- nor can one rationally argue -- that the situation in Libya constitutes either an act of "self-defense" or the "stopping of an actual or imminent threat to the nation." How, then, can Obama's campaign position possibly be reconciled with his ordering military action in Libya without Congressional approval (something, it should be said, he has not yet done)? ..."

[stevenleser]

12. The Resolution does not compel US action, but it makes it legal in terms of both

international and US Law. Congress approved the UN Charter. The UN CHarter provides for a lot of things like potential call for force by the UN Security Council.

Congress can approve treaties and accords that may compel the US to act forcefully in given situations, for instance, a mutual defense pact.

[slipslidingaway]

32. That is the question, do we need Congress if we have a UN resolution? n/t

[stevenleser]

40. We care about the UN resolution BECAUSE we have a congressionally approved treaty that...

recognizes the legitimacy of a UN resolution.

AND, as per Article 2 of the Constitution, if congress is unhappy about this treaty, they can amend or disapprove of it at any time.

Congress has the ability to approve treaties like Mutual Defense treaties that would compel the use of the armed forces in various circumstances. The approval of the UN Charter is no different.

[stevenleser]

6. Since Congress approved the UN charter, this argument is now invalid since...

we have a UN Security Council Resolution authorizing the No Fly Zone.

[emulatorloo]

8. Article was written on March 9th. A lot has happened since then

as you point out.

[sweetapogee]

11. no

wrong, incorrect

[stevenleser]

14. Yes, correct. Consider that congress can approve treaties like mutual defense pacts.

That kind of treaty would compel the US to respond if an ally is attacked. The President needs no additional authorization to act in a situation like that. The same goes for UN Action.

[emulatorloo]

18. UN resolution 1973 established the no-fly zone.

No fly zone

6. Decides to establish a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians;

7. Decides further that the ban imposed by paragraph 6 shall not apply to flights whose sole purpose is humanitarian, such as delivering or facilitating the delivery of assistance, including medical supplies, food, humanitarian workers and related assistance, or evacuating foreign nationals from the Libyan Arab Jamahiriya, nor shall it apply to flights authorised by paragraphs 4 or 8, nor other flights which are deemed necessary by States acting under the authorisation conferred in paragraph 8 to be for the benefit of the Libyan people, and that these flights shall be coordinated with any mechanism established under paragraph 8;

8. Authorizes Member States that have notified the Secretary-General and the Secretary-General of the League of Arab States, acting nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance with the ban on flights imposed by paragraph 6 above, as necessary, and requests the States concerned in cooperation with the League of Arab States to coordinate closely with the Secretary General on the measures they are taking to implement this ban, including by establishing an appropriate mechanism for implementing the provisions of paragraphs 6 and 7 above,

9. Calls upon all Member States, acting nationally or through regional organizations or arrangements, to provide assistance, including any necessary over-flight approvals, for the purposes of implementing paragraphs 4, 6, 7 and 8 above;

10. Requests the Member States concerned to coordinate closely with each other and the Secretary-General on the measures they are taking to implement paragraphs 4, 6, 7 and 8 above, including practical measures for the monitoring and approval of authorised humanitarian or evacuation flights;

11. Decides that the Member States concerned shall inform the Secretary-General and the Secretary-General of the League of Arab States immediately of measures taken in exercise of the authority conferred by paragraph 8 above, including to supply a concept of operations;

12. Requests the Secretary-General to inform the Council immediately of any actions taken by the Member States concerned in exercise of the authority conferred by paragraph 8 above and to report to the Council within 7 days and every month thereafter on the implementation of this resolution, including information on any violations of the flight ban imposed by paragraph 6 above;

[soryang]

13. There is no foundation in the UN Charter for the SC resolution

The factual predicate for the resolution isn't there. There was no fact finding process, no review, and no application of a legal standard provided for in the charter. No matter how you look at it the military attack by the US on Libya was nothing more than naked aggression.

Civilians weren't being killed by Kadafi in Libya. Armed rebels in insurrection were being killed. This is not a legal basis for armed foreign intervention no matter who claims to authorize it.

[stevenleser]

16. Yes, there is. Here is a link

http://www.un.org/en/documents/charter/chapter5.shtml

[soryang]

20. You haven't made a legal citation for the factual predicate for

...armed intervention by foreign powers on a sovereign state. Choose your legal grounds for intervention.

[stevenleser]

28. Just like any other democratic body, the UN governs by consent of the governed

In all cases, those participating countries and those on the receiving end are all signatories of the UN charter.

Game, set, match

[soryang]

38. You've never studied law have you?

Or are you from the Professor Yoo/ Judge Bybee school of law which promotes the lawless "unitary executive" theory and rationalizes torture and military aggression?

[stevenleser]

39. I get it now, you are one of these people that keeps changing the subject when proven wrong.

I got it. I'm not playing.

[vaberella]

15. They're a bit dated SL. n/t

[Junkdrawer]

17. UN resolutions do not trump the US Constitution...

Even the elder Bush knew that in Gulf War I

[stevenleser]

19. Congress signed the UN Charter which is considered a treaty. See the Constitution on treaties

This is all fully accounted for.

[Junkdrawer]

22. So now we have a Unitary Executive with a UN figleaf....

and no role for Congress.

Get your war on!

[stevenleser]

27. Did you choose to gloss over the congress approving of a treaty accordiing to Article 2?

http://en.wikipedia.org/wiki/Treaty_Clause

note in this link that congress can choose to amend or rescind the treaty at any time.

You want so badly to push this incorrect and unfounded meme is beyond me. You are clearly wrong.

[TheKentuckian]

29. Congress is not being evaded as Congress ratified the charter..

Obama is not acting alone nor acting in violation of the Constitution or International law.

You can oppose actions without the fig leaf of them being illegal.

[Motown_Johnny]

23. and The War Powers Act gives POTUS the authority to do this

for up to 60 days


So your implication that this is somehow unconstitutional and therefore illegal is invalid.

[Junkdrawer]

25. He has 48 hours to notify Congress and start the 60 day clock....

Let's see if he does that.

[mmonk]

31. Only under attack or threat.

Otherwise there would be no reason for congress in terms of declarations of war.

[slipslidingaway]

33. Thanks mmonk ...

http://en.wikipedia.org/wiki/War_Powers_Resolution

"The War Powers Resolution of 1973 (50 U.S.C. 1541–1548) was a United States Congress joint resolution providing that the President can send U.S. armed forces into action abroad only by authorization of Congress or if the United States is already under attack or serious threat..."

http://www.salon.com/news/opinion/glenn_greenwald/index.html?story=/opinion/greenwald/2011/03/18/libya

"...Obama's answer seems dispositive to me on the Libya question: "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." And he went on to say that the President could constitutionally deploy the military only "in instances of self-defense." Nobody is arguing -- nor can one rationally argue -- that the situation in Libya constitutes either an act of "self-defense" or the "stopping of an actual or imminent threat to the nation." How, then, can Obama's campaign position possibly be reconciled with his ordering military action in Libya without Congressional approval (something, it should be said, he has not yet done)? ..."

[slipslidingaway]

34. That is the question ...

does Congress still need to approve military force after the UN Resolution.

And where is the US under attack or serious threat from Libya?

http://en.wikipedia.org/wiki/War_Powers_Resolution

"The War Powers Resolution of 1973 (50 U.S.C. 1541–1548) was a United States Congress joint resolution providing that the President can send U.S. armed forces into action abroad only by authorization of Congress or if the United States is already under attack or serious threat..."

[virgogal]

21. .

[Spider Jerusalem]

26. The US isn't doing it; the UN is.

See: Security Council resolution (jointly drafted by the UK and France, NOT by the US).

Different thing altogether, I take it that neither of these people have any competence in the area of international law.

[groundloop]

36. I'll repeat what's already been said - THE UNITED NATIONS IMPOSED NO-FLY

The US is acting with other nations to enforce the UNITED NATIONS RESOLUTION.

[RB TexLa]

41. No existing statute or treaty? Try the United Nations charter