JURIST Contributing Editor Michael J. Kelly, Professor of Law and Associate Dean for Faculty Research and International Programs at Creighton University School of Law says that, for now, President Obama has the legal authority to commit U.S. military forces to establish the no-fly zone over Libya…

On March 19, 2011, a coalition of nations began air combat missions over the coastal areas of Libya to establish a no-fly zone, designed to protect civilians protesting Col. Muammar Gaddafi’s rule from further bombardment by his military. The United States is part of that coalition. Since President Barack Obama committed U.S. military forces, questions have been raised over the President’s legal authority to undertake this action.

An American president contemplating significant military engagement abroad typically needs two authorizations for use of force: one international, the other domestic. International legal authority can stem from sources such as the United Nations Charter or the North Atlantic Charter. For example, in the 1991 Persian Gulf War, the U.N. Security Council authorized force. In Afghanistan, the locus of legal authority was the U.N. Charter’s self-defense provisions together with Article 5 of the North Atlantic Charter – triggering NATO action. In the Iraq War, there was no such international legal authority other than a shaky analogy to pre-U.N. Charter customary law. Thus, that war was widely deemed illegal under international law.

In this case, the Security Council voted to authorize military action under resolution 1973. Despite what Curtis Doebbler contends, it was generally understood to constitute the necessary authorization. Moreover, his argument that Article 42 was not complied with is disingenuous. Doebbler argues it does not meet “the requirements of article 42 that a determination has been made that ‘measures not involving the use of force’ have failed.” In fact Art. 42 contains no such requirement. It merely says “should the Security Council consider that measures provided for in Article 41 would be inadequate, or have proved to be inadequate, it may take [military action]. . . .” The preamble to 1973 clearly indicates the Council considered such efforts would have proven inadequate and, given the exigencies of the situation (Gaddafi’s troops closing on Benghazi and his threat to find and kill rebels “house by house“), Mr. Doebbler’s recommended delay would have cost thousands of Libyan civilian lives.

As for domestic legal authority, an American president must involve Congress. Such involvement manifests itself either actively or passively. The president can seek a specific authorization for use of force (AUMF) from Congress prior to commencing combat operations. Or he can rely on the already enacted 1973 War Powers Resolution, which to utilize is a political decision, but both may suffice. Arguably, it is always smarter politics to involve Congress early and often with respect to major military actions. However, President Obama chose not to do this. He followed the path President Ronald Reagan did in 1986, when he bombed Libya without an express Congressional resolution in response to the Libyan bombing of a Berlin disco that killed several American soldiers.

Interestingly enough, every president since Richard Nixon has regarded the War Powers Resolution as an unconstitutional encroachment on his Article II executive power, but has nonetheless complied with the reporting requirements. Under the WPR, the President may commit U.S. forces into armed hostilities, but must advise Congress within 48 hours that he has done so. This report must explain the circumstances necessitating the deployment, the legal authority he is relying on, and the estimated scope and duration of hostilities. A 60-day clock then begins ticking, at the end of which the president must terminate his military action unless (1) Congress has specifically authorized it, (2) Congress has extended the 60 days, or (3) Congress is physically unable to meet due to an attack on the U.S. But the President may extend the 60 days by another 30 days if he certifies to Congress that he cannot safely remove U.S. forces from combat without that additional time.

Thus, an American president operating under the WPR, basically has 92 days total to get his military business done abroad without specific Congressional authorization. That said, Congress reserves the right to itself to pull the plug on any executive military adventures by concurrent resolution at any time. However, no Congress has never done this and it is unlikely that any would. President Reagan duly reported his engagement with Libya to Congress. Likewise, President Obama duly reported his own engagement with Libya to Congress. President Reagan’s airstrikes were over quickly, so the legislative clock was not a factor. It could be that Obama is gambling that Gaddafi will be gone within three months, thereby allowing him to “beat the clock.” But if Gaddafi is not gone, then Congressional authorization will be needed.

Again, Congressional authorization may be express or implied. Express authorization is preferred, but frankly President Obama may have burned this bridge politically by not consulting extensively enough with Congress beforehand. The implied, or constructive, Congressional consent can be pursued by following the Kosovo model. There, President Clinton deployed U.S. forces to participate in a NATO-led bombing campaign against Serbia to force Slobodan Milosevic’s troops out of Kosovo, where they were committing atrocities against the local population.

Clinton had neither the express backing of the U.N. nor Congress prior to this military action. Russia, the traditional ally of Serbia would have vetoed any intervention, and Congress was still politically inhospitable to the recently impeached but acquitted president. Instead, President Clinton used NATO for international authority and interpreted Congressional funding as domestic authority. A memo from the Department of Justice concluded that “the emergency supplemental appropriation for military operations in Kosovo, constituted authorization for continuing hostilities after the expiration at sixty days under section 5(b) of the War Powers Resolution.” Obviously, this is a more tenuous legal position and perhaps one that would be ripe for litigation. Nevertheless, the precedent is available.

The “no-fly zones” over Iraq that were established by the U.S., Britain and France traced a similarly tenuous backward route to legal authority in the Congressional and U.N. authorizations to use force in the run-up to the Persian Gulf War. Arguably neither body originally contemplated a decade-long military presence. American presidents must navigate tricky legal and political waters when undertaking endeavors such as establishing a “no-fly zone” or Libya. A correct balance must be struck among several factors, not the least of which includes public acceptance, international backing, cooperation from allies, and endorsement from Congress. Getting it right in all cases is rare. Maintaining the security of the United States and saving lives on the ground are sometimes competing interests. But where they dovetail, and the president summons the will to act, he is provided the tools to do so within the WPR framework.

Michael J. Kelly is the newly-elected president of the U.S. National Chapter of L’association International du Droit Penal, a Paris-based society of international criminal law scholars, judges and attorneys. Additionally, he has presented his views on U.N. Security Council reform to the Academic Council of the U.N. System in New York. His work is among the top 15 percent downloaded from the Social Science Research Network

Suggested citation: Michael J. Kelly, The President Does Not Need Congressional Approval for Libya No-Fly Zone (Yet), JURIST – Forum, March 22, 2011, http://jurist.org/forum/2011/03/the-president-does-not-need-congressional-approval-for-libya-no-fly-zone-yet.php.