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Unanswered Questions

By Henry “Chip” Carey

In the wake of the killing of Osama bin Laden, the conflict in Libya—the most recently launched of the three wars America is currently fighting in the Muslim world—was pushed off the front pages. One issue that has escaped attention is Congress’s impending deadline to authorize U.S. troops to remain in harm’s way in Libya. According to the War Powers Act, Congress has only until May 18 to authorize a continued armed presence in Libya. Otherwise, the constant presence of U.S. warplanes in Libyan airspace, along with an unknown number of CIA and other agents on the ground, must halt—though an automatic 30-day extension is available at presidential initiative. June 16 is 90 days after President Obama informed Congress that these forces were in harm’s way.

Of course, the cart is already out of the block, and Secretary of State Clinton has repeatedly called for Muammar Gaddafi to resign. NATO has attacked his compound a number of times, killing members of Gaddafi’s family. It is the only situation within the wider “Arab Spring” that  the United States has responded to with military force—although arguably, repression just as brutal has occurred in Syria and Bahrain, among others).

The desire to save lives in Libya from Gaddafi’s massacres was legally sanctioned by UN Security Council Resolution 1973. However, if the United States is going to uphold its values about the rule of law, as well as  maintain the humanitarian focus of the mission, it should not allow the initial mission of saving lives to be overtaken by the desire to remove Gaddafi.

So far, there has been absolutely no debate about the fact that U.S. law in this area has not been tested in the courts—or indeed, whether those in power truly understand it.  No one seems to care what the statutory text says or means. Essentially, Congress is being treated as ultimately unimportant, and the system of checks and balances in the Constitution is being waived by an imperial presidency.

Congress has a role that is defined by Constitutional law. In this case, Congress hypocritically demands that its voice be heard and its laws be enforced—but not when it comes to Libya. The Constitution does not say that the commander-in-chief has the right to ignore the law. If the President ignores the War Powers Act, the U.S. legal system requires that he be held accountable.

Perhaps necessity could be a legal defense for the United States staying in Libya, despite the requirements of the War Powers Act. Certainly no one is being prosecuted or going to jail.  President Nixon signed the War Powers Act in order to keep future presidents from deploying troops for extended periods of time without Congressional authorization—exactly what is now happening in Libya.  Congress and potential litigants should not refrain from enforcing their legal rights, even if they fear being deemed unpatriotic for challenging the President’s war powers. If Congress lacks the constitutional authority to regulate war powers, it is high time the country find out.

If the Supreme Court wishes to deny Congress standing to sue, then let us hear its explanation. Is this a political question? And if so, why? Otherwise, it can only be assumed that our legal system lacks the power to enforce the rule of law whenever the country is at war.


Henry "Chip" Carey is an associate professor of political science at Georgia State University.


Photo courtesy of Flickr user Nasser Nouri


Anonymous's picture
Nixon & the WPA

You write: "President Nixon signed the War Powers Act in order to keep future presidents from deploying troops for extended periods of time without Congressional authorization—exactly what is now happening in Libya."

But this is blatantly untrue. Nixon vetoed the War Powers Act because he felt it usurped his presidential powers. Congress overrode his veto. In the years after he left office, Nixon never wavered in his belief the law was unconstitutional.

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