We Do Declare
Libya and the United States Constitution



Kevin Govern


U.S. warplanes and guided missiles are currently striking various targets across Libya, as part of the so-called Operation Odyssey Dawn, in our third military intervention in a Muslim nation since 2001. Our military forces are now being committed to a substantial show of force “between war and peace,” ostensibly to further yet another revolution against a dictatorial regime. This is in stark contrast to U.S. support of, or intervention into, “Jasmine Revolution”-inspired uprisings in other North African and Middle Eastern nations earlier this year. Those revolts and uprisings had, at most, U.S. economic and political support, and little to no military support.


What constitutional authority does President Obama have to conduct these military operations? The present “no-fly zone” in Libya, along with limited bombardments of Libyan targets, ostensibly is authorized under U.N. Security Council Resolution 1973: “to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya.” But that is international law. The inherent “Commander in Chief” powers under Article II, Section II, are limited to matters of national defense. In a matter of checks and balances, Congress passed into law the War Powers Resolution (a/k/a War Powers Act or WPA), Section 1547(a) of which states that appropriations laws or general treaties may not be used to infer congressional intent to authorize specific military action. Furthermore, section 1541 (c) limits presidential authority: The president has constitutional authority to introduce troops into hostilities only in cases where Congress has declared war,  Congress has specifically authorized military action, or there is a national emergency created by an attack upon us.

While past presidents have disputed the applicability of the WPA to their Commander-in-Chief orders to deploy forces, President Obama has apparently briefed a select number of members of Congress as a tacit compliance with the WPA’s Section 1543 reporting requirements (within 48 hours of introduction of United States Armed Forces into hostilities, and periodic reports thereafter).

Our present operational (and legal) “path between war and peace” remains to be seen — and challenged — by Congress and the American people. How and when the U.S. will define “decisive victory” or “mission accomplishment” in these or follow-on operations remains unknown.

— Kevin Govern is an assistant professor at Ave Maria Law School. He is a veteran of various deployments during peacetime and war, and served in five Airborne and Special Operations assignments around the globe, amongst other responsibilities, during his 23-year career as an Army judge advocate.