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03.22.11

Is the Libya War Legal?

Congressional leaders are slamming Obama for not consulting with them on Libyan airstrikes—but it’s not clear that he even had to. Daniel Stone asks constitutional scholars who’s right.

As President Obama attempts to keep all the plates spinning on his Libya policy, critics in Congress are stepping up complaints that the White House acted hastily, irresponsibly and, at least some members of the president’s own party have charged, unconstitutionally.

Despite the television pictures of bombs and cruise missiles finding their targets, the intervention by the United States and European allies is, legally, not yet an actual war. Funding for the U.S. involvement is coming from a flexible Pentagon spending account that allows the administration to spend up to about $1 billion dollars on urgent military matters without approval from Congress. But members of both parties are saying Capitol Hill should have been consulted anyway, especially on the objectives and the timeline. Republican Sen. John Cornyn complained in a tweet that Congress was being treated like “a potted plant.”

Constitutional scholars have begun debating Obama’s obligation to seek a formal nod on Capitol Hill, a debate with echoes dating to Vietnam. “The actions in Libya are constitutionally problematic because there wasn’t a consultation of the whole Congress, only the leadership” says Robert Cottrol, a constitutional law professor at George Washington University. One possible method would have been to have both houses pass resolutions detailing the scope of the U.S. operation. Even though the Senate passed a unanimous resolution last week encouraging a no-fly zone over Libya, the House had not weighed in when the missiles began to launch.

A missile launched against another country could be considered an act of war, even though it only took 20 minutes and cost a million bucks or so.

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Tufts University law professor Michael Glennon, who has studied the U.N. Charter in depth, compares Obama joining the coalition against Muammar Gaddafi with Harry Truman’s unilateral decision to enter the conflict that turned into the Korean War. “If you don’t call it a war, you can just bypass the constitutional requirements of starting a war,” says Glennon. “That’s a totally bogus argument.” The length and scope of the conflict may not matter, as a missile launched against another country could be considered an act of war, even though it only took 20 minutes and cost a million bucks or so.

White House officials and Democratic insiders are pushing back. Officials have released dates and times that President Obama met with a bipartisan group of lawmakers in recent weeks, including one widely reported discussion in the Situation Room last Friday attended by more than 15 congressional leaders. (Speaker John Boehner has responded that those sessions were designed mostly as courtesy briefings rather than actual requests for input.) “It’s not exactly valid criticism,” says Democratic strategist Steve McMahon. “Lots of people have been calling on the president to [set up a no-fly zone], and when the U.N. did it, the White House said America’s in as part of a coalition. It’s the most responsible walk-up to military action that I’ve seen from a president in a long time.”

The White House also downplayed the criticism to The Daily Beast on Tuesday. One official notes that it’s France, not America, that is leading the coalition. The official also pointed to Obama’s recent statements on his trip through Latin America that U.S. military operations will end in a matter of days, not weeks, suggesting that a month from now, the critiques will likely die down.

Pressed on complaints from Congress, Press Secretary Jay Carney said Thursday as Air Force One flew from Chile to El Salvador that the operation in Libya was designed to be short and collaborative with other countries. He also rejected the criticism that Obama made the decision alone. “We take very seriously the need to consult with Congress and we have been doing that, and we would welcome any action they took to show support,” Carney said. But other senior officials who stayed behind in Washington have mostly stayed out of the public fray. “Staying low key is the appropriate style for what’s going on,” says Democratic pollster Geoff Garin, noting that all presidents face initial dissent when launching military action.

Other Democratic strategists see the complaints from Republicans and even Democratic lawmakers as raw political calculations to side with a war-weary public growing increasingly skeptical as the situation in Libya heads toward possible stalemate. “On the Republican side, they’re putting their heads up to score political points,” says Chris Lehane, a Clinton White House veteran accustomed to handling political crises. “It almost reminds me of a heads-I- win, tails-you-lose kind of situation.”