We Do Declare
Libya and the United States Constitution



Is what we’re doing in Libya constitutional? How ought a president go about such a thing? We asked some experts.


Bill Burck

President Obama’s war in Libya is unconstitutional without congressional authorization. But that is so only because the president has not yet given us a reason to fight that is constitutionally sound. As Andy McCarthy has explained so well, the president’s constitutional power to go to war without congressional authorization is limited to circumstances in which we have been attacked or face an imminent risk of attack, or our vital national interests are otherwise at stake. President Obama has not come close to articulating any such basis for the military intervention in Libya. It appears that his strategy is to hit Qaddafi hard and fast and then get out (meaning the French and the British take over combat operations) before Congress can really take the administration to task for doing an end run around the Constitution.

This is not to say that President Obama has done the wrong thing, morally speaking, by intervening to prevent the mass slaughter of civilians in Libya. But that does not make it legal. And that’s the administration’s fault.

President Obama could have articulated a clear basis to launch an attack. One can conceive of an argument, for example, that permitting Qaddafi to act without restraint would have sent exactly the wrong message to the rulers of Yemen, Bahrain, and other regimes under pressure that the best way to avoid Hosni Mubarak’s fate is to kill your own people without fear of intervention by the U.S. and the West. That message could have accelerated the collapse of the Middle East into a bloody regional civil war. No one could seriously question the importance to U.S. national-security interests of avoiding such an outcome.

But defining a constitutional basis for intervention would have required the administration to clearly define its objectives upfront. And that is precisely what they appear unable, or unwilling, to do. Saving civilians is, of course, a worthwhile goal, but the U.S. does not intervene anywhere and everywhere civilians are at risk, nor could we.

So what makes Libya special? The president and his advisers have no clear answer. And this helps explain the lack of leadership currently on display in prosecuting the war. It’s impossible to lead our allies effectively when the president does not have any real idea what vital national interests he is trying to defend. Defining those interests, however, would make the president responsible for the success or failure of the mission, a political risk the administration appears keen to avoid.

It is this evasion of accountability that the Constitution prevents. If the president wishes to take the nation into war, he must convince Congress that his reasons are legitimate. If he chooses not to get authorization, then he must explain the severity of the threat to justify his actions. So far, the president has done neither because it appears he does not want to lead, and ultimately be responsible for, this fight. That is no way to run a war.

— Bill Burck is a former federal prosecutor and deputy counsel to Pres. George W. Bush.