The Legality of Libya

"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."

- Senator Barack Obama, 2007

As Officers we are required to support the Constitution and to refuse illegal orders. As such, we are independently responsible for determining whether an order violates the Constitution and or law. It's a burden without a doubt. While the legality of an order is solely determined by law, to include the Constitution, it's interesting to note that Congress and Officers of the Executive have weighed into the discussion as have others from the legal communities.

The vast majority of the House of Representatives in a bipartisan effort, voted to rebuke the POTUS over actions they claim are unconstitutional and therefore illegal, in Libya, passing 268-145. There is a debate whether or not Congress will go beyond pointing out the illegality of the action and will add the power of the purse to the discussion. Apparently the Pentagon will fund the war with present funds instead of relying on further Congressional funding. A bipartisan group of ten Congressman are suing the POTUS in an effort to get the Supreme Court to issue an order suspending the efforts in Libya. The POTUS chose to disregard the findings of his own top lawyers, including the Justice Department's Office of Legal Council, Caroline D. Krass, and Pentagon General Council, Jeh C. Johnson. Those lawyers maintained that actions in Libya did amount to "hostilities," and are therefore subject to the War Powers Resolution and the time limit which has now expired. This view is supported by the Attorney General, Eric Holder. While the Office of Legal Council is normally the legal source for the POTUS, he can choose to ignore the findings of his top lawyers, though it is apparently rarely done.

While there are government actors, lawyers, and pundits who will argue each and every side of any issue, individuals who have sworn an oath to the Constitution are required to consult it and law alone, in determining orders they can or cannot carry out. Even a midshipman at the United States Naval Academy has asked this important question on the blog of Tom Ricks, who himself claims the cornerstone of the legality argument doesn't pass the laugh test. Opinions and arguments aside, what does the Constitution itself have to say about this issue?

Those who believe the POTUS can act without being restrained by the law of Congress, with regard to delivering combat actions with military forces, point solely to Article 2, Section 2 of the Constitution of the United States which states:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

The side arguing for unlimited war powers by the President claim that simply having the title "Commander in Chief" implies the POTUS can command the military unchecked by Congressional oversight.

Those who disagree point to Article 1, Section 8 of the Constitution of the United States which gives Congress the Power:

To declare War,

And also gives Congress the Power:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The Congress points to their Power above in the law they passed to carry into Execution the power of the POTUS regarding their power to declare what is War, and what is not. The law they passed is Title 50, Chapter 33, the War Powers Resolution.

In this law they define the limits of the President stating in 1541(a):

It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

And in 1541(b):

Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer hereof.

And in 1541(c):

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to

(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.

And in 1542:

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

And further declares what is considered to be hostilities, or war, in 1543(a):

In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

The Congress also specifies when the POTUS must terminate use of Armed Forces in 1544(b):

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress

(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,

(2) has extended by law such sixty-day period, or

(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

It is of note that the President is not authorized to extend the 60 day period to 90 days unless Congress is physically unable to meet to grant the authorization or declare war as a result of an attack upon the United States. In that case, the POTUS may extend the hostilities to 90 days only after providing a written certification to Congress that unavoidable military necessity requires the continued use of the military to bring about a prompt removal of forces.

As military Officers, we are charged with supporting the Constitution and disobeying unlawful orders. Popularity, convenience, and the opinions of others play no factor in our decisions as Article VI of the Constitution is written. We must consult the Law, and ensure our actions are bound by the limits set in the Constitution.