Libya and the Law

Watching the President last night, I was struck (repeatedly) by his effort to convince Americans that committing acts of war against Libya is a good idea because it is (1) meant to avoid a massacre and protect civilians, and (2) temporary, to be handed off to an international “coalition.”

One question, though, remains unanswered:  was it legal?

Article I, Section 8 of the U.S. Constitution grants Congress the power to declare war.  Congress has neither done so nor apparently been asked to do so.  Consequently, no consitutional authority has been conferred on the President to wage war against Libya.

Apart from the Constitution, is there statutory authority for this war?  The closest we get is the War Powers Act of 1973, but that act limits the circumstances under which the President can unilaterally commit our military to combat:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

There are those who contend the War Powers Act is unconstitutional, but we needn’t discuss that here, since the President clearly could not have acted in accordance with that law.  There is no declaration of war, no statutory authorization, and no attack on the United States.

In 2007, when there was speculation that the U.S. might launch a pre-emptive strike on Iran, then-Senator Biden warned that such action would be unconsitutional and grounds for impeachment:

Where is Biden now?  On vacation.

You might agree with the President that waging war on Libya is a good idea, or you might think it’s not such a wise move.  But, good idea or bad idea, it is clearly illegal.