The Libyan war: Unconstitutional and illegitimate

The Anglo-French-American attack in North Africa is opposed by countries representing 40 percent of the human race

Published March 21, 2011 12:30PM (EDT)

President Barack Obama makes a statement about Japan following last week's earthquake, tsunami, and subsequent nuclear concerns, Thursday, March 17, 2011, in the Rose Garden of the White House in Washington. (AP Photo) (AP)
President Barack Obama makes a statement about Japan following last week's earthquake, tsunami, and subsequent nuclear concerns, Thursday, March 17, 2011, in the Rose Garden of the White House in Washington. (AP Photo) (AP)

There is no doubt that U.S. participation in the Anglo-French-American attack on Libya is completely unconstitutional. As Glenn Greenwald has pointed out, before becoming president Barack Obama, a graduate of Harvard Law School and a former law professor, accurately described the limits of a president’s authority to initiate a war in cases where the U.S. has neither been attacked nor is in imminent danger of attack:

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.

As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent.

The civil war in Libya is a perfect case of "a situation that does not involve stopping an actual or imminent threat to the nation." While the president is limited by the Constitution to repelling or forestalling attack, Congress can declare war for a variety of purposes beyond simple defense. But as a member of the United Nations, the U.S. must abide by the provisions of the U.N. Charter.

The provisions of the Charter are ambiguous, but the soundest interpretation is that under Article 51 countries can wage wars of national or regional self-defense without the approval of the U.N. Security Council. However, under Article 42, Security Council approval is necessary for wars undertaken for other, non-defensive purposes.

It is not clear whether there are limits on what kinds of military actions, in addition to wars of self-defense, that the Security Council can authorize, to deal with a "threat to peace, breach of the peace, or act of aggression," as described in Article 39. The Security Council was designed to act as a great power concert capable of intervening to nip international crises in the bud. Whether one thinks it is prudent or not, intervention in the Libyan civil war, in order to avert, say, floods of refugees spilling over the borders or washing up on the shores of southern Europe, would seem to be the sort of thing the Security Council has the power to authorize.

However, while the Security Council can authorize member states to undertake a war for purposes other than national or regional self-defense, it cannot order any country to do so. The U.S. agreed to participate in the United Nations only because the U.N. charter makes it clear that each member state has the right to decide, on the basis of its internal constitutional processes, whether to take part in an enforcement action authorized by the Security Council.

In other words, there are two distinct systems of authorization, one international and one national. Under international law, the U.S. lacks the authority to engage in wars unrelated to its own defense or that of its allies. Security Council action might lift that legal restraint. But once the Security Council has acted, Congress must still authorize the military action by formal voting, not by mere "consultation" with the president.

The U.S. stayed out of the League of Nations after World War I in part because critics argued that it transferred the power to send the U.S. to war from Congress to an international body. Critics of U.S. participation in the United Nations after World War II similarly argued that the result would be presidential wars authorized by the U.N. but not by Congress.

By taking part in a war unrelated to American defense on the basis of a U.N. Security Council resolution, without asking the House and the Senate for a joint resolution as the basis of his authority, President Obama has validated the fears of the critics that U.S. participation in the United Nations would informally amend the Constitution, by transferring authority to initiate all kinds of wars from Congress to the president. The argument that Congress, merely by funding the military, approves of wars initiated without congressional authorization, cannot be taken seriously.

This is not the first unconstitutional war in American history. Truman’s Korean war and Clinton’s Kosovo war and his invasion of Haiti were all waged without congressional authorization (the Vietnam War was authorized by the Southeast Asia Resolution or “Gulf of Tonkin” Resolution). In contrast, Ronald Reagan obtained a congressional joint resolution authorizing his brief intervention in Lebanon (September 29, 1983), George Herbert Walker won a congressional joint resolution in favor of the Gulf War on January 12, 1991, while his son George W. Bush similarly obtained congressional authorization for the Afghan War (September 14, 2001) and the Iraq War (October 16, 2002). Unconstitutional wars waged without authorization by Congress and justified in the name of this or that international diplomatic body -- the UN, the Organization of American States, or in the case of the Libyan war the Arab League -- seem to be a specialty of "internationalist" Democratic presidents like Truman, Clinton and Obama.

In the case of the Libyan war, the presidential power grab is even more blatant, because weak, poor countries on the Security Council have acted as ventriloquists’ puppets for the U.S., Britain and France.

When the U.N. was being designed during World War II, Franklin Roosevelt initially wanted membership in the Security Council to be limited to three or four great powers, like the U.S., Britain, the Soviet Union and nationalist China. Unfortunately, in its final form, the authority of the great powers in the Security Council was diluted by rotating membership for various lesser powers. In addition to the five permanent members of the Security Council -- the U.S., Britain, France, Russia and China -- there are, at any given time, ten temporary members. Only a permanent member can veto a U.N. Security Council resolution, but the temporary members are permitted to vote as equals of the permanent members.

Why this matters is evident from the pattern of the U.N. Security Council vote that authorized the no-fly zones in Libya. At present the U.N. Security Council is made up of the five permanent members plus ten other countries: Bosnia and Herzegovina, Brazil, Colombia, Germany, India, Gabon, Lebanon, Nigeria, Portugal, South Africa.

Of the members of the Security Council other than the permanent five, only Germany and possibly India and Brazil can be described as actual or potential great powers. Several of today’s temporary U.N. Security Council members are hardly countries at all. Lebanon’s government controls only part of its territory. Gabon is a statelet with a mere 1.6 million people, smaller than many American cities.

In the vote to authorize war against Libya, the U.S., Britain and France were joined by Bosnia and Herzegovina, Colombia, Gabon, Lebanon, Nigeria, Portugal and South Africa. Abstaining from the vote were five countries: Brazil, Russia, India, China and Germany.

What do the five countries that registered their opposition to the Libyan war have in common? They make up most of the great powers of the early twenty-first century. A few years back, Goldman Sachs identified the so-called "BRIC’s" -- Brazil, Russia, India and China -- as the most important emerging countries in the world. The opponents of the Libyan war on the Security Council are the BRIC’s plus Germany, the most populous and richest country in Europe.

Including the United States, the Security Council nations that voted for the no-fly zone resolution have a combined population of a little more than 700 million people and a combined GDP, in terms of purchasing power parity, of roughly $20 trillion. The Security Council countries that showed their disapproval of the Libyan war by abstaining from the vote have a combined population of about 3 billion people and a GDP of around $21 trillion.

If the U.S. is factored out, the disproportion between the pro-war and anti-war camps on the Security Council is even more striking. The countries that abstained from the vote account for more than 40 percent of the human race. The countries that joined the U.S. in voting to authorize attacks on Libya, including Britain and France, have a combined population that adds up to a little more than 5 percent of the human race.

The truth is that the U.S. is joined in its war on Libya by only two second-rank great powers, Britain and France, which between them carved up North Africa and the Middle East a century ago, slaughtering and torturing many Arabs in the process. Every other major power on earth (with the exception of Japan, which is not on the Council and has been quiet) opposed the Anglo-French-American attack in North Africa, registering that opposition by abstentions rather than "no" votes in the Security Council.

The U.S., along with Britain and France, won the Security Council vote in the face of opposition from China, Russia, Germany, India and Brazil only by rounding up the votes of various minor countries, including Gabon and Lebanon and Colombia and Portugal. If the U.S. promised favors to these weak nations in return for pro-war votes, it would not be the first time in the history of American diplomacy. In any event, the claim that the international community supports the war cannot be sustained, in the face of the opposition of the BRIC’s plus Germany.

And what of the alleged moral authority provided by the Arab League? A week after calling on the UN to impose a no-fly zone on Libya, the Arab League reversed its position, once western bombs began to rain down on an Arab country. Explaining the reversal, Amr Mussa, the secretary general of the Arab League, said: "What has happened in Libya differs from the goal of imposing a no-fly zone and what we want is the protection of civilians and not bombing other civilians."

In his press conference last Friday, President Obama told the American people: "Yesterday, in response to a call for action by the Libyan people and the Arab League, the U.N. Security Council passed a strong resolution that demands an end to the violence against citizens." It is bad enough that the President thinks that a declaration of war by Congress is not necessary, as long as the war is blessed by Security Council members like Colombia and Gabon, as well as by "the Libyan people" and by the collection of kleptocrats and thugs that make up the Arab League. But when the Arab League withdraws its support as soon as the war begins -- well, that’s just embarrassing.

By Michael Lind

Michael Lind is the author of more a dozen books of nonfiction, fiction and poetry. He is a frequent contributor to The New York Times, Politico, The Financial Times, The National Interest, Foreign Policy, Salon, and The International Economy. He has taught at Harvard and Johns Hopkins and has been an editor or staff writer for The New Yorker, Harper’s, The New Republic, and The National Interest.

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