I’m not sure I agree with all of Michael Lind’s take on the Libya situation, but this rundown on how different Presidents have dealt with war authorization is instructive:
While the Security Council can authorize member states to undertake a war for purposes other than national or regional self-defense, it cannot order any country to do so. The U.S. agreed to participate in the United Nations only because the U.N. charter makes it clear that each member state has the right to decide, on the basis of its internal constitutional processes, whether to take part in an enforcement action authorized by the Security Council [...]
This is not the first unconstitutional war in American history. Truman’s Korean war and Clinton’s Kosovo war and his invasion of Haiti were all waged without congressional authorization (the Vietnam War was authorized by the Southeast Asia Resolution or “Gulf of Tonkin” Resolution). In contrast, Ronald Reagan obtained a congressional joint resolution authorizing his brief intervention in Lebanon (September 29, 1983), George Herbert Walker won a congressional joint resolution in favor of the Gulf War on January 12, 1991, while his son George W. Bush similarly obtained congressional authorization for the Afghan War (September 14, 2001) and the Iraq War (October 16, 2002). Unconstitutional wars waged without authorization by Congress and justified in the name of this or that international diplomatic body — the UN, the Organization of American States, or in the case of the Libyan war the Arab League — seem to be a specialty of “internationalist” Democratic presidents like Truman, Clinton and Obama.
I think Lind left out Grenada and Panama, as well as Libya in 1986, from this narrower analysis. But true to this form, President Obama has sent a letter to Congress, as required under the War Powers Act, explaining the mission in Libya. And as Greg Sargent notes, he pretty much rejects the proposition that he has to seek Congressional authority for this action.
United Nations Security Council Resolution 1973 authorized Member States, under Chapter VII of the U.N. Charter, to take all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya, including the establishment and enforcement of a “no-fly zone” in the airspace of Libya. United States military efforts are discrete and focused on employing unique U.S. military capabilities to set the conditions for our European allies and Arab partners to carry out the measures authorized by the U.N. Security Council Resolution [...]
Qadhafi’s continued attacks and threats against civilians and civilian populated areas are of grave concern to neighboring Arab nations and, as expressly stated in U.N. Security Council Resolution 1973, constitute a threat to the region and to international peace and security. His illegitimate use of force not only is causing the deaths of substantial numbers of civilians among his own people, but also is forcing many others to flee to neighboring countries, thereby destabilizing the peace and security of the region. Left unaddressed, the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States. Qadhafi’s defiance of the Arab League, as well as the broader international community moreover, represents a lawless challenge to the authority of the Security Council and its efforts to preserve stability in the region. Qadhafi has forfeited his responsibility to protect his own citizens and created a serious need for immediate humanitarian assistance and protection, with any delay only putting more civilians at risk.
Obama is implicitly suggesting here that Libya presents an imminent threat to the United States, albeit an indirect one. This sort of satisfies the War Powers Act, which limits US military action to that circumstance. But Obama makes no inference to seeking Congressional authority within 60-90 days, as required. That’s because of this bank shot on Libya representing an imminent threat to the nation.
The implications here are pretty alarming, but I’m not naive enough to think that the War Powers Act has been traditionally used as a check on executive power. Members of Congress, by and large, don’t want to take this vote because they don’t want the responsibility. The executive has basically become the sole authority on military operations and foreign policy, and I don’t see Congress really asserting their role to change that.
UPDATE: And as I say that, ranking member of House Judiciary John Conyers comes out very strong, calling for an emergency session of Congress:
“Article I, Section 8, clause 11 of the Constitution grants Congress – not the President – the power ‘to declare war,’ stated Conyers. While the legislative and executive branches have long grappled over the exact division of powers in times of war, the Constitution grants sole authority to the Congress to commit the nation to battle in the first instance. That decision is one of the most serious that we are called upon to make and we should never abdicate this responsibility to the President. I therefore join my colleagues on both sides of the aisle in calling for an immediate session of Congress to review United States military engagement in Libya.” Conyers also pointed to a line of legal precedent and history supporting this proposition.
Conyers is a co-sponsor with Ron Paul and Mike Honda on a sense of the House resolution that states “the President is required to obtain in advance specific statutory authorization for the use of United States Armed Forces in response to civil unrest in Libya.”