Posted by Kromey at 9:16pm Aug 22 '11In 2001, then-President George W. Bush sought and received Congressional approval for an invasion of Afghanistan, in direct response to the Taliban's supposed involvement in the 9/11 terrorist attacks.
Two years later, President Bush again won Congressional approval to invade Iraq, ostensibly necessary based on supposed "secret intelligence" that Saddam had WMDs.
In March of 2011, President Barack H. Obama launched missile and air strikes into Libya to assist rebel forces attempting to topple the 4-decade-old regime of Gaddaffi. The rebels having seemingly taken control of Tripoli, apparently the core of Gaddaffi's power base, let's now look back on US involvement in this war, compared with the much-criticized Iraq and Afghanistan invasions and occupations, with a focus on the legality of these actions.
On the stage of international law, the Afghanistan invasion and the support of Libyan rebels were both authorized by the UN Security Council; the former on the basis of the Taliban's support of terrorism, the latter based on humanitarian grounds of protecting the lives of rebel fighters. The 2003 invasion of Iraq was not authorized by the UN, although arguably may have been supported by previous UN resolutions against Iraq following its invasion a decade earlier of Kuwait.
Only problem is, the UN Charter itself prohibits the UN from intervening in the internal affairs of any state -- which a rebellion certainly is. Thus while the morality of supporting the Libyan rebels is most probably sound, the legality (from the point of view of the UN and international law) is tenuous at best.
In summary:
Afghanistan invasion: Legal on international stage
Iraq invasion: Possibly legal on international stage
Libyan support: Probably illegal on international stage
Coming back home to the US, as already noted the invasions of both Iraq and Afghanistan were preceded by Congress authorizing President Bush to use the military. This is important: Under the US Constitution, only Congress has the power and authority to declare war; this power is delegated, however, in a very limited fashion in the War Powers Resolution of 1973, which states conditions under which the president may engage military forces in hostilities without Congressional approval, but also stipulates that such approval must be sought within 60 days and, if not received, such hostilities must be ended within 30 days after that.
So with Iraq and Afghanistan, while no official declaration of war was passed, Congress nonetheless authorized the use of the military by the president, thus making both actions legal under US law.
But what about Libya? By my count, today is the 121st day of US involvement. Thus, Obama was required by law to seek Congressional approval 61 days ago and, if he failed that, to withdraw US forces 31 days ago. That's assuming his commitment of US forces initially were legal under the War Powers Resolution.
We'll take a look at these in a somewhat strange order:
First off, the 90-day deadline to withdraw US forces if Congress does not authorize their involvement. Dead simple: No authorization has come, and yet we're still involved 31 days after the deadline. Result: Illegal on this first count.
Secondly, the 60-day deadline to get Congressional approval. Again, dead simple: He didn't even try to get it, although he did satisfy the requirement to inform Congress within 48 hours. All the same, the result is: Illegal on this second count.
So while not even seeking Congressional approval isn't, strictly speaking, illegal -- technically, a president could engage in up to 90 days of hostilities legally under the War Powers Resolution without ever getting Congress involved (except to tell them about it within 48 hours of starting) -- the fact that we're still engaged in Libya is indeed illegal.
But what about the initial commitment? Under the War Powers Resolution, at least one of 3 conditions must be met in order for the president to commit the US military:
(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.
So now we see why the invasions of Iraq and Afghanistan were legal under US law: They satisfied condition (2), despite the lack of a declaration of war.
Libya, however, satisfies none of these conditions: There's no declaration of war, there's no statutory authorization, and there's no attack upon US soil, territories, possessions, or armed forces. This means that Obama's commitment of US forces to Libya was illegal from the very first day!
This coming from the very same man who, while campaigning for the presidency, declared: "No more ignoring the law when it's inconvenient"; as president, he'd show the world "that the law is not subject to the whims of stubborn rulers." And from the very same man who also said:
So, in summary:
Afghanistan invasion: Legal under US law
Iraq invasion: Probably legal under US law
Libyan support: Definitely illegal under US law
So much for not ignoring inconvenient laws...
(Brief historical note: Past presidents violating the War Powers Resolution have argued that it is an unconstitutional abridgment of the Commander-in-Chief's authority over the military; Congress argues that is justified by the Necessary and Proper Clause (Article One, Section 8, Clause 18 of the US Constitution) as a law in support of their sole authority to declare war under the War Powers Clause (Article One, Section 8, Clause 11). And to be fair, both sides have an argument here (although I'm firmly on Congress' side on this one), which has yet to be settled definitely. However, this argument is moot in regards to Libya, as Obama's justification is rather that there are no "hostilities" in Libya, and therefore the War Powers Resolution does not apply. In other words, Obama asserts that the president can unilaterally decide to bomb the fuck out of whomever he wants, and there's fuck all that Congress can do about it. In still other words, the War Powers Resolution is inconvenient, so Obama's decided to ignore it.)
Two years later, President Bush again won Congressional approval to invade Iraq, ostensibly necessary based on supposed "secret intelligence" that Saddam had WMDs.
In March of 2011, President Barack H. Obama launched missile and air strikes into Libya to assist rebel forces attempting to topple the 4-decade-old regime of Gaddaffi. The rebels having seemingly taken control of Tripoli, apparently the core of Gaddaffi's power base, let's now look back on US involvement in this war, compared with the much-criticized Iraq and Afghanistan invasions and occupations, with a focus on the legality of these actions.
On the stage of international law, the Afghanistan invasion and the support of Libyan rebels were both authorized by the UN Security Council; the former on the basis of the Taliban's support of terrorism, the latter based on humanitarian grounds of protecting the lives of rebel fighters. The 2003 invasion of Iraq was not authorized by the UN, although arguably may have been supported by previous UN resolutions against Iraq following its invasion a decade earlier of Kuwait.
Only problem is, the UN Charter itself prohibits the UN from intervening in the internal affairs of any state -- which a rebellion certainly is. Thus while the morality of supporting the Libyan rebels is most probably sound, the legality (from the point of view of the UN and international law) is tenuous at best.
In summary:
Afghanistan invasion: Legal on international stage
Iraq invasion: Possibly legal on international stage
Libyan support: Probably illegal on international stage
Coming back home to the US, as already noted the invasions of both Iraq and Afghanistan were preceded by Congress authorizing President Bush to use the military. This is important: Under the US Constitution, only Congress has the power and authority to declare war; this power is delegated, however, in a very limited fashion in the War Powers Resolution of 1973, which states conditions under which the president may engage military forces in hostilities without Congressional approval, but also stipulates that such approval must be sought within 60 days and, if not received, such hostilities must be ended within 30 days after that.
So with Iraq and Afghanistan, while no official declaration of war was passed, Congress nonetheless authorized the use of the military by the president, thus making both actions legal under US law.
But what about Libya? By my count, today is the 121st day of US involvement. Thus, Obama was required by law to seek Congressional approval 61 days ago and, if he failed that, to withdraw US forces 31 days ago. That's assuming his commitment of US forces initially were legal under the War Powers Resolution.
We'll take a look at these in a somewhat strange order:
First off, the 90-day deadline to withdraw US forces if Congress does not authorize their involvement. Dead simple: No authorization has come, and yet we're still involved 31 days after the deadline. Result: Illegal on this first count.
Secondly, the 60-day deadline to get Congressional approval. Again, dead simple: He didn't even try to get it, although he did satisfy the requirement to inform Congress within 48 hours. All the same, the result is: Illegal on this second count.
So while not even seeking Congressional approval isn't, strictly speaking, illegal -- technically, a president could engage in up to 90 days of hostilities legally under the War Powers Resolution without ever getting Congress involved (except to tell them about it within 48 hours of starting) -- the fact that we're still engaged in Libya is indeed illegal.
But what about the initial commitment? Under the War Powers Resolution, at least one of 3 conditions must be met in order for the president to commit the US military:
(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.
So now we see why the invasions of Iraq and Afghanistan were legal under US law: They satisfied condition (2), despite the lack of a declaration of war.
Libya, however, satisfies none of these conditions: There's no declaration of war, there's no statutory authorization, and there's no attack upon US soil, territories, possessions, or armed forces. This means that Obama's commitment of US forces to Libya was illegal from the very first day!
This coming from the very same man who, while campaigning for the presidency, declared: "No more ignoring the law when it's inconvenient"; as president, he'd show the world "that the law is not subject to the whims of stubborn rulers." And from the very same man who also said:
So, in summary:
Afghanistan invasion: Legal under US law
Iraq invasion: Probably legal under US law
Libyan support: Definitely illegal under US law
So much for not ignoring inconvenient laws...
(Brief historical note: Past presidents violating the War Powers Resolution have argued that it is an unconstitutional abridgment of the Commander-in-Chief's authority over the military; Congress argues that is justified by the Necessary and Proper Clause (Article One, Section 8, Clause 18 of the US Constitution) as a law in support of their sole authority to declare war under the War Powers Clause (Article One, Section 8, Clause 11). And to be fair, both sides have an argument here (although I'm firmly on Congress' side on this one), which has yet to be settled definitely. However, this argument is moot in regards to Libya, as Obama's justification is rather that there are no "hostilities" in Libya, and therefore the War Powers Resolution does not apply. In other words, Obama asserts that the president can unilaterally decide to bomb the fuck out of whomever he wants, and there's fuck all that Congress can do about it. In still other words, the War Powers Resolution is inconvenient, so Obama's decided to ignore it.)
Obama's illegal war - Kromey