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Libyan “Hostilities” Revisited June 20, 2011

Posted by Afflatus in Politics, World Affairs.
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It’s already time for me to revisit the debate over Libyan “hostilities.” I’m not happy with my post last week, and a lot has happened since then. The House of Representatives is likely to consider two measures this week (probably on Thursday) relating to the US Libyan operation: an amendment to the FY2012 DOD appropriations bill offered by Rep. Kucinich to defund the entire operation, and some sort of Republican alternative, the exact language of which is still being worked out by GOP leadership. There are really three questions at stake here, which I feel like my last post did not delineate clearly:

1: Are American military operations in Libya justified?

2: Is the President legally bound to receive authorization from Congress in order to conduct these operations?

3: Regardless of the answer to question 2, should the President seek authorization from Congress?

In my last post, I only really answered question 1, and I did so indirectly. I fully support US military operations in Libyan and believe they are justified. The United States and its allies prevented a massacre, upholding the R2P norm, at little cost. While the US took the lead at first, we did so in conjunction with a broad coalition that included Arab and African countries. Qaddafi’s regime was causing insecurity in North Africa and the world, and there was a serious threat to the stability of Arab Spring hopefuls Tunisia and Egypt, which Libya borders. The alternative, withdrawing our support for the NATO mission, would undermine whatever levels of trust we have with our allies. While the mission of the NATO military operation is not regime change, that is the stated political goal. Establishing a new regime in Libya (one of the most tribal countries in Africa) will certainly be messy, but I agree with the administration’s decision to make regime change the explicit political goal. This is a very low-cost way for the US to achieve a desired long-term goal.

Regarding question 2, there is really no clear answer. The controversy over this particular question intensified over the weekend when it was reported that President Obama overruled the legal advice of his Attorney General and the Office of Legal Counsel at the Justice Department. These two offices are charged with providing the Oval Office legal counsel, and to overrule them both is a major statement. Admittedly, the President knows a thing or two about the constitution, and he does have the final say. The statute in question, the War Powers Act, is extremely ambiguous, and the judicial branch has not, and seemingly will not, issue a formal ruling. Thus, Congress could clarify the law, or it could use its tools to make Obama suffer for this politically. It will definitely do the latter, and it may attempt to do the former. While Obama may suffer political consequences, he will not suffer legal ones.

Ideally the answer to question 3 is yes. The more debate and oversight that takes place in Congress, the more democratic America becomes. However, things are not that simple when politics are involved. My former professor, and respected Arab world commenter, Marc Lynch posits that the administration did not seek Congressional authorization early on in its Libyan operation because it correctly believed there would be significant, unwanted riders attached to the legislation like repealing health care reform, reinstating “Don’t Ask, Don’t Tell”, or more budget cuts. I think he is right. The truth is, nobody knows what would have happened had the administration tried to receive authorization from Congress last week before the 90 day threshold expired. The administration judged the wiser choice was to claim it does not need Congressional authorization because the War Powers Act does not apply to its current Libyan operations.

Marc Lynch also wishes that the administration would seek Congressional authorization and make a “full-throated case for the Libya intervention– why it was launched, what it accomplished, where it fits into the broader unfolding Arab transformation, and how its success will advance American interests.” Now that is has made it official policy that the administration does not need Congress’ approval, this will not happen. I am satisfied that the 30 page memo to Congress fulfills this explanation on the part of the administration. While it may not be the unabashed defense of the Libyan “hostilities” that Lynch desires, it persuasively answers the questions of “why it was launched, what it accomplished, where it fits into the broader unfolding Arab transformation, and how its success will advance American interests.”

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Libyan Hostilities? June 16, 2011

Posted by Afflatus in Politics, World Affairs.
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Do U.S. operations in Libya amount to “hostilities” as defined by the War Powers Act? That is the big question among national security legal experts right now. The divide between the legislative and executive branches of America’s federal government over the War Powers Act of 1973 has always been stark. And the judicial branch (which is supposed to mediate disputes such as this) has distinctly avoided weighing in on the matter. The law was passed in 1973 by a supermajority in both houses of Congress, overriding President Nixon’s veto. The law basically says that the President is only authorized to initiate the armed forces into “hostilities” if one of three things has occurred: 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. Most President’s, detesting the law’s constraints on their power, have openly declared the law to be unconstitutional. They cite Article II, Section 2 of the constitution which simply states that the President is Commander and Chief of the armed forces.

Congress has been clamoring for an explanation from the administration of its Libyan operations. On Wednesday they got it, with the Obama Administration arguing that nothing it was doing in Libya constituted “hostilities.” The lack of hostilities makes the War Powers Act totally inapplicable. The administration sent a 30-page memo to Congress, 14 pages of which are unclassified. I find almost every argument the administration makes in the memo compelling. Most of them are not new; the memo repeats the same arguments the administration has made since March, and they are well-founded.

The memo starts with background, and quickly refutes one of the most frequent objections, “well if we go into Libya, why not Bahrain, Syria, or Cote D’Ivoire?” The administration’s response is that Libya was unique: “In this particular country – Libya – at this particular moment, we were faced with the prospect of violence on a horrific scale. We had a unique ability to stop that violence: an international mandate for action, a broad coalition prepared to join us, the support of Arab countries, and a plea for help from the Libyan people themselves. We also had the ability to stop Qaddafi’s forces in their tracks without putting American troops on the ground.” One or more of these conditions was not satisfied in the other countries.

Since coming into office, President Obama has projected a coherent vision of engagement with the world based on strengthening the international rule of law. The Libyan intervention falls right in line with this tenet of his. The international principle of the “responsibility to protect” was invoked and reinforced. The intervention had a wide mandate from the United Nations. Qadhafi’s brutal violence against his own population has been catalogued by a United Nations Commission of Inquiry and has resulted in a request for arrest warrants by the Prosecutor of the International Criminal Court for crimes against humanity. Standing idly by would have undermined the United States’ credibility as well as that of the international community’s role in preventing mass atrocities from occurring.

The administration’s memo also explains that America’s role is truly quite limited. The administration makes a convincing argument that the U.S. is not engaged in “hostilities” as the War Powers Act intends. Since March 31, when the U.S. handed off the primary command and control duties to NATO, America’s role has been limited to “electronic warfare assistance; refueling; strategic lift capability, personnel recovery and search and rescue, intelligence, surveillance, and reconnaissance support; and an alert strike package.” Since March 31, three-quarters of the over 10,000 sorties flown in Libya have now been by non-U.S. coalition partners, a share that has increased over time. All 20 ships enforcing the arms embargo are European or Canadian. The United States provides nearly 70 percent of the coalition’s intelligence capabilities and a majority of its refueling assets, enabling coalition aircraft to stay in the air longer and undertake more strikes. The US also lends its unique air strike capabilities – unmanned Predator UAVs – to the mission. So we perform intelligence, resupply non-US aircraft, and fly drones. That ain’t a whole lot. The Pentagon reports that this will cost $1.1 billion by September, but it has vowed not to seek off-budget appropriations (as was repeatedly necessary for Afghanistan and Iraq).

My one problem with the administration’s unclassified policy memo is the stated time line of operations. At the June 8 meeting of NATO Defense Ministers, NATO reaffirmed the April 14th statement of Foreign Ministers that operations would continue:

“until all attacks and threats against civilians and civilian populated areas have stopped… until the regime has pulled back all its forces — including its snipers and its mercenaries — away from civilian centers and back to their bases. And until there is a credible and verifiable ceasefire, paving the way for a genuine political transition and respecting the legitimate aspirations of the people of Libya.”

Although we’re not doing much in Libya’s airspace, and American lives are not at risk, this is a virtually open-ended mandate. Qadhafi has shown his resolve, he is not pulling back until the rebels and coalition forces push him back. Due to the highly tribalized and fragmented society that exists in Libya, a ceasefire that will “pave the way for a genuine political transition” will take years. $1 billion is not much money to the Pentagon or the federal government, but if you extend that out for a couple years and consider other pressing, domestic spending priorities, the cost becomes a significant problem.

Are America’s Libyan operations illegal? No. Will the lawsuit filed by Rep. Kucinich et al. fail? Yes. Is it a problem that national security law at the highest levels is ambiguous? Absolutely. My personal opinion is that foreign policy decision-making should not be democratic. But at the same time there must be real transparency and accountability for the decisions which the President and his national security advisers make.

North Korea is the Scariest! May 31, 2009

Posted by Afflatus in World Affairs.
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The title of the blog post was just changed from “North Korea is Scary” to its current wording. It is both, but my new title is here to stay. To me, North Korea is the biggest and scariest threat to the United States and to humanity on many different levels.

Quick recap: in April they launched a long-range missile over Japan, one of our strongest allies, closest trading partners, and (let’s not forget) the only country to have suffered a nuclear attack. After this attack North Korea expelled UN nuclear weapons inspectors.

Quick recap of this week only: Monday North Korea conducted an underground test of a nuclear device and fired six short-range missiles into the Sea of Japan. What’s more their maniacal tyrant, Kim Jong Il announced that the armistice agreement signed to end the Korean War in 1953 was null and void. This would be a nearly-certain cause for war (cassus belli) in many other situations. World War One and the 1967 Six Day War both began over less provocative actions. The magnanimity of this cannot be understated.

Why is North Korea a “threat” to the US national interest?
Protecting our allies is a primary concern. South Korea and Japan are two of our biggest allies; Japan was Secretary Clinton’s first foreign visit, showing the importance of the Japan-US relationship. The Administration is also worried that eventually, in a worst case and far-off scenario, a direct nuclear strike could hit our West coast. For these reasons the State Department must take action. What should we do?