Would Libya No-Fly Zone Require Congressional Authorization?

by Peter Spiro

Bruce Ackerman and Oona Hathaway say yes; Jack Goldsmith, no.  I’m with Jack on this one.  Especially as authorized by the UN Security Council, there’s solid precedent for proceeding without an advance congressional okay.  As Jack points out, Kosovo is probably the closest analogy in terms of the scope of the operation (a case in which authorizing legislation was voted on and defeated).  Somalia evidences some constitutional significance to the UNSC authorization, reflected (against type) in this OLC memo from Bush I OLC head Tim Flanigan, under cover from AG Bill Barr (hardly a softy on international law).

Whatever argument one might make for authorization, it certainly doesn’t require a formal declaration of war, which Richard Lugar is reportedly asserting (so wacky it’s almost hard to believe that the reporting is accurate).  Lawprof congressman Tom Campbell introduced a joint resolution declaring war against Serbia during the Kosovo bombing, which was defeated by a vote of  427-2.  This aside, we can expect a debate on the authorization question.  Republicans will now be asserting congressional power; Democrats, executive prerogatives; you are where you sit.


9 Responses

  1. Response…
    The President has the duty to faithfully execute the Laws, including international law, and, therefore, the President has the competence to execute an authorization for a no-fly-zone approved by a decision of the Security Council or NATO.
    see also 35 Cornell Int’l L.J. 533, 551-54 (2002).

  2. Jack Goldsmith left out one pertinent point in his analysis. The Authorization to use military force in the Balkans was actually voted on and struck down.
    Prior to the expiration of the War powers act (60 days) there were a series of votes related to the legality of the air war in the Balkans. The first a war authorization, struck down. The second on whether to support Senate Resolution 21, divided. A bill AGAINST the use of ground troops was passed. And then Congress passed a supplemental appropriation bill paying for “Operation Allied Force” which allowed the “war” to continue.

  3. Response… Yes, it is “wacky” to think declarations of war are necessary to get involved in acts of war like no fly zones and military attacks on sovereign countries that are not imminent threats to our safety or are in no way involved in a war against us.  Not misguided or wrong.  Simply “wacky.”

  4. Okay, maybe “wacky” is a little strong.  But the overwhelming vote on declaring war against Serbia is pretty good evidence that it’s extremely implausible.

  5. Response… If we read what the linked article says, Sen. Lugar balances all the complexities at hand and appears to provide a pragmatic conclusion that in this case congressional involvement should be prerequisite. It is not clear he thinks this is a mandatory rule in all cases.

    As to wacky, I guess Prof. Balkin’s post on what is accepted these days over at his blog is reaffirmed.

  6. I agree with Bruce Ackerman & Oona Hathaway.  UN authorization does nothing to alter the constitutional allocation of war powers, which clearly places in Congress’s hands the authority to authorize the use of force in non-defensive contexts.  It would also be extremely unwise for President Obama to bypass Congress in this instance.

    But Peter, you should stick to your guns on “wacky” on the need for a declaration of war.  Readers of this blog are no doubt aware of the hundreds of times that the U.S. has resorted to the international use of force without a formal declaration.  I agree with Joe that some form of congressional authorization is required, but that authorization need not take the form of a formal declaration of war.

  7. President Clinton used the UNSC and his powers as stated in the War Powers Act to take action in Kosovo.  He essentialy declared he had the Executive authority to deploy troops, and if my memory isn’t faulty, effectively told Congress that the provision in the War Powers Act that declared he had to withdraw forces if they did not provide their own approval was unconstitutional.

    I would think that a Chapter VII UNSC would be grounds for a President to take action ahead of Congress passing any legislation.

  8. Charles D. — Your memory is faulty on the WPR question in Kosovo; see http://www.justice.gov/olc/final.htm.

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