Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror

15 - The Obama Administration and Military Action in Libya

265 15 the obama ad­ min­ is­ tra­ tion and mil­ i­ tary ac­ tion in libya In early 2011, the “Arab ­ Spring” ­ brought ­ protest and rev­ o­ lu­ tion to coun­ tries in North Af­ rica and the Mid­ dle East. Dur­ ing the first six weeks of 2011, pop­ u­ lar up­ ris­ ings ­ brought down auto­ cratic rul­ ers in Tu­ ni­ sia and Libya. In Feb­ ru­ ary 2011, pro­ tests ­ mounted ­ against the Qad­ hafi re­ gime in Libya. Lib­ yan dic­ ta­ tor Mu­ am­ mar Qad­ hafi dis­ patched the mil­ i­ tary to crack down on pro­ test­ ers, but the coun­ try ­ quickly be­ came frag­ mented, with ­ rebels gain­ ing con­ trol of sig­ nif­i­ cant por­ tions of the coun­ try.1­ Events in Libya ­ created a hu­ man­ i­ tar­ ian cri­ sis: thou­ sands of ref­ u­ gees fled the coun­ try, while those who re­ mained faced bomb­ ing and shell­ ing by govern­ ment ­ forces.2 On Feb­ ru­ ary 26, 2011, the ­ United Na­ tions Se­ cur­ ity Coun­ cil ­ adopted a res­ o­ lu­ tion that “con­ demned the vi­ o­ lence and use of force ­ against ci­ vil­ ians” by the Qad­ hafi re­ gime, ­ though it did not call for the use of force by mem­ ber ­ states in re­ sponse to ­ Qadhafi’s ac­ tions.3 In the weeks after the UN res­ o­ lu­ tion, fight­ ing con­ tin­ ued in Libya. By­ mid-March, govern­ ment ­ forces ­ seemed ­ poised to re­ take Ben­ ghazi, a city held by rebel ­ forces. Qad­ hafi prom­ ised to show “no mercy and no pity” as the mil­ i­ tary took back the city, house by house.4 On March 17, 2011, the UN Se­ cur­ ity Coun­ cil ­ adopted an­ other res­ o­ lu­ tion, this time im­ pos­ ing a­ no-fly zone for Lib­ yan govern­ ment ­ forces and au­ thor­ iz­ ing mem­ ber ­ states to use mil­ i­ tary force to pro­ tect Lib­ yan ci­ vil­ ians.5­ Against this back­ drop, Pres­ i­ dent Obama moved to­ ward ac­ tion, ul­ ti­ mately jus­ tify­ ing his de­ ci­ sions on a the­ ory of uni­ lat­ eral emer­ gency pres­ i­ den­ tial power. On March 18, 2011, Pres­ i­ dent Obama ­ called on Qad­ hafi to end all at­ tacks on ci­ vil­ ians and to call back ­ troops that were ready to enter Ben­ ghazi. Obama ex­ pressed con­ cerns about a po­ ten­ tial hu­ man­ i­ tar­ ian cri­ sis, 266 the obama administration and military action in libya with the pos­ sibil­ ity that Qad­ hafi could kill thou­ sands of ci­ vil­ ians.6 On March 19, 2011, Pres­ i­ dent Obama or­ dered air­ strikes ­ against Libya, as­ sert­ ing that these ac­ tions were “au­ thor­ ized by the ­ United Na­ tions Se­ cur­ ity Coun­ cil.”7 By the end of March, the Obama ad­ min­ is­ tra­ tion “had trans­ ferred re­ spon­ sibil­ ity for the mil­ i­ tary op­ er­ a­ tions in Libya” to NATO; U.S.­ forces would play a “sup­ port­ ing role” in ­ NATO’s con­ tin­ ued ef­ forts in Libya.8 The prob­ lem, as Louis ­ Fisher notes, is that Con­ gress had not au­ thor­ ized the use of mil­ i­ tary force, and Libya had nei­ ther at­ tacked nor threat­ ened an at­ tack ­ against the ­ United ­ States or U.S. ­ forces.9 Be­ fore he was ­ elected pres­ i­ dent, can­ di­ date Obama con­ ceded that “[t]he Pres­ i­ dent does not have power under the Con­ sti­ tu­ tion to uni­ lat­ er­ ally au­ thor­ ize a mil­ i­ tary at­ tack in a sit­ u­ a­ tion that does not in­ volve stop­ ping an ac­ tual or im­ mi­ nent ­ threat to the na­ tion.” ­ Though can­ di­ date Obama em­ pha­ sized that the pres­ i­ dent could act uni­ lat­ er­ ally “[i]n in­ stances of ­ self-defense,” that was an ex­ cep­ tional and lim­ ited case, since “[h]is­ tory has shown us time and again . . . that mil­ i­ tary ac­ tion is most suc­ cess­ ful when it is au­ thor­ ized and sup­ ported by the Leg­ is­ la­ tive ­ branch. It is al­ ways pref­ er­ able...