Can the President Legally Continue to Use Military Force in Libya?

Will our involvement in the Libyan conflict become illegal after May 19, 2011? What is the significance of that date? Does the president have the right to order our ships and planes into military action without the approval of Congress? Doesn't the Constitution give Congress and only Congress the authority to "declare War?"

The question of the division of responsibility between Congress and the president to engage in military action has been debated for decades without a definitive answer. In November 1973 Congress passed the War Powers Resolution which reasserted congressional power over military action after a long period when congressional approval was totally ignored by the executive branch. The law was passed "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."

Congress never passed a declaration of war in either the Korean War or the Vietnam War, two of the most significant military actions after World War II. (It did specifically approve of the more recent Iraq War and the Afghanistan conflict). In Korea, President Truman relied only upon a United Nations Security Council resolution to justify our involvement. In Vietnam, Congress did pass the Gulf of Tonkin Resolution which broadly allowed the United States to come to the aid of any country, including South Vietnam, that signed the Southeast Asia Collective Defense Treaty. But then Congress repealed the Gulf of Tonkin Resolution in January 1971 while the war was still ongoing. When the continuation of the war was challenged in various legal actions taken by the ACLU and others, the courts held that congressional financial support of the war was sufficient authorization and satisfied the "declaration of war" clause.

President Nixon continued to bomb Cambodia in the spring of 1973 even after the Vietnam armistice was signed. In response, Congress included a provision in an appropriations bill that no money for the military could be used for such bombing. Nixon promptly vetoed the law, and Congress did not override the veto. Nixon's veto of the Cambodian bombing halt showed Congress that its constitutional power to declare war was totally undermined: it could not even stop a war that the president started on his own, without the approval of two-thirds of both Houses. It had to reassert its role by the prompt passage of the War Powers Resolution in November, 1973. That law allows a president to initiate military actions on his own so long as he reports to Congress within 48 hours of beginning that activity. Actions that trigger the requirements of the law include the introduction of armed forces "(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." That clearly applies to the situation in Libya since our aircraft did invade Libyan airspace armed with bombs.

The law further requires that the president cease "any use of United States Armed Forces" 60 days after the report is issued unless Congress specifically approves of such use (or after 90 days in an emergency situation). The War Powers Resolution contains a specific clause stating that appropriations for the military cannot be construed as authorization for the use of force. Such authorization cannot be inferred from "any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities."

In the present situation, President Obama authorized our naval forces to fire missiles into Libya and our Air Force planes to attack Libyan anti-aircraft sites on March 19, 2011. Two days later, on March 21, 2011, President Obama filed a report to Congress describing what he had done and under what legal authority he had done so. That action started the clock on the 60-day requirement in the law, which will expire on May 19, 2011. After that date, "any use" of United States Armed Forces is forbidden. The president said in his report that he ordered the military actions "pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive." He added that he was "providing this report as part of my efforts to keep Congress fully informed consistent with the War Powers Resolution." He did not say that he was filing the report "in accordance" with the law. If he used the latter formulation, he would be admitting that the Resolution does control his actions. However, his legal advisers have rejected the notion that the War Powers Resolution restricts the president's actions in Libya. As explained below, they claim that, despite the unequivocal requirement of congressional approval of "any use" of the armed forces after the 60-day deadline, the law is unconstitutional as applied to presidential use of the military in situations that do not qualify as a "war."

The justification for rejecting the strict application of the Resolution was explained by the Office of Legal Counsel of the Justice Department (the OLC). It issued a legal memorandum on April 1, 2011, explaining the basis for the use of military force in Libya without congressional approval. The memorandum cited, first, inherent presidential power to use military power short of a full-fledged "war." It wrote: "the historical practice of presidential action without congressional approval precludes any suggestion that Congress' authority to declare war covers every military engagement, however limited, that the President initiates." Second, the memorandum also relied upon the United Nations Security Council resolution calling on members to defend civilians and establish a no-fly zone over Libya. Finally, the memorandum did cite the War Powers Resolution as a basis for presidential action, at least for the first 60 days of the conflict. So even if the action in Libya takes more than 60 days to complete, the president may rely on the first two justifications offered to continue military action.

American planes continue to fly sorties into Libya to strike at air defense units. Recently the Defense Department announced that it was releasing fully armed but unmanned drones to support the campaign. There is no indication that anyone in the executive is treating May 19, 2011 as a real deadline.

After 1973, we have been engaged in many military actions, in which there has been a dispute whether the War Powers Resolution applies. In November, 1990 President George H.W. Bush relied on a Security Council resolution for military action against Iraq after its invasion of Kuwait, claiming he did not need congressional approval. But Congress approved the action on its own. President Clinton took military action in Haiti and Bosnia without seeking congressional approval. Presidents insist on some flexibility in military action and simply do not want to seek congressional approval in every case. That may take time and require modification of military plans as they negotiate with 435 members of Congress.

The dispute revealed by the OLC memorandum continues. Presidents assert that only a full-fledged war requires explicit congressional authorization, that is, when large numbers of grounds troops are engaged, as well as our other military and naval forces. Even then, a United Nations Security Council resolution may suffice, according to the Justice Department. But the United Nations Charter requires that nations must act in accordance with their "constitutional processes" when they participate in military actions authorized by the Security Council. In our case, that seems to require that Congress must authorize the use of force.

The impasse between Congress and the president on this point could theoretically be resolved by the courts. Their jurisdiction has often been invoked to decide the question by persons who challenged our military action in Nicaragua, Grenada, Bosnia and Haiti, among other places. But the courts have ducked the issue on the grounds that plaintiffs who start the action, such as members of Congress, do not have standing to sue, or the political question doctrine precludes the courts from getting involved.

The doubt over presidential power to start military action continues to this day. To show how cloudy the situation remains, a few years ago, three separate committees of the New York Bar Association came to three different conclusions about the legality of the War Powers Resolution. One committee said that the law was unconstitutional because it gave the president too much power to use military force without congressional approval and thus violated the declaration of war clause. Another committee said that the law was unconstitutional because it restricted the president from using inherent presidential power to use the military in situations less than a full scale war -- the position that the Justice Department is now talking. A third committee said that the law struck the proper balance between presidential and congressional power over the military.

The reason for this theoretical stalemate is obvious: presidents want their flexibility to act, and Congress insists on its constitutional prerogatives. In some bizarre way, the lack of clarity over the extent of presidential war power is helpful to both branches. The president retains his ability to use military force (on a limited basis) without facing a 60 day deadline. Congress is generally reluctant to question the executive over the use of military power on behalf of the nation. But it can make political points about the president's failure to secure the necessary congressional authorization and then criticize the president if the campaign does not succeed. And the courts will continue to find a way to avoid deciding the question. Sometimes uncertainty is good for our government leaders, but not, perhaps, for the nation as a whole, who would like to know for sure who can start a war, however it is defined.

Leon Friedman is a professor of constitutional law at Hofstra Law School. He is the co-author (with Burt Neuborne) of Unquestioning Obedience to the President: The ACLU Case Against the Legality of the War in Vietnam.