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Intervening in Libya–Domestic Law Authority

Monday, March 7, 2011

“I think the international community’s is going to come together . . . to try to have a coordinated effort to bring pressure on Gadhafi,” said White House Chief of Staff Bill Daley, yesterday, on Meet the Press.  “The president knows that the ultimate decision he has to make at times is to put men and women in harm’s way, and you do that only with great consultation with your allies.”  (My emphasis.)  Daley did not mention whether the administration believed it needed to consult with or receive the support of Congress in order to intervene in Libya.  But influential Senators yesterday urged the President to consider a no-fly zone, and the administration is considering its military options.  Which raises two questions if the President decides to intervene in Libya: (1) Will he seek formal congressional authorization?, and (2) if not, does he have the legal authority to order U.S. troops to conduct air raids, enforce a no-fly zone, and perhaps more, without Congressional authorization?

The answer to (1) involves a tradeoff: Presidents are better off legally and politically if Congress is expressly on board, ex ante, for a military intervention; but getting Congress’s approval can take time and political energy, Congress can impose constraints, and Congress might decline to give such approval, as the House of Representatives did, by a tie vote, in refusing to authorize President Clinton’s Kosovo bombings in 1999.  (The last three express ex ante approvals Congress gave for military interventions were the 2002 Authorization to Use Force in Iraq, the 2001 AUMF against those responsible for 9/11, and the 1992 AUMF for Iraq.)

The answer to (2) is probably yes, but the strength of the arguments depend on facts on the ground in Libya, the type of military intervention the President employs, and what the U.N. Security Counsel does.  Little judicial precedent concretely addresses this issue, but plenty of executive branch precedent does, and the War Powers Resolution looms in the background.  (Below are web-available links to the major OLC Legal Opinions – some more carefully and cautiously reasoned than others – related to unilateral military intervention during the past few decades.)  The bottom line as I see it, very briefly, is as follows.  (I will try to supplement this cursory analysis – which is much too simple – as events unfold.)

Continue reading Jack Goldsmith at Lawfare