Can the UN give Obama the authority to send US forces in the Libyan War?

Summary: Many advocates for the war in Libya cite the UN Security Council resolution as giving Obama authority to start a war. That’s easily shown to be totally false.

The Constitution has died of a thousand cuts. Small cuts. Each accompanied by rationalizations and soothing words. At some point it dies. Perhaps it already has died. Here we look at the latest thrusts into its body.

The UN Charter

“The Korean War: On What Legal Basis Did Truman Act?“, Louis Fisher (Congressional Research Service), American Journal of International Law, January 1995 — Click through to see the footnotes. Excerpt:

President Harry Truman’s commitment of U.S. troops to Korea in June 1950 still stands as the single most important precedent for the executive use of military force without congressional authority. This article examines the legality of Truman’s action, in terms of both the United States Constitution and the United Nations Participation Act of 1945, which establishes the procedure for making American troops available in response to requests by the UN Security Council. The action raises two principal questions: Did Truman act contrary to constitutional and statutory law? Is his action, supposedly grounded on UN Security Council resolutions, a valid precedent for contemporary presidential decisions?

… The San Francisco Conference{1945} produced the United Nations Charter, which was submitted to the Senate for approval. … Chapter VII of the Charter dealt with UN responses to threats to the peace, breaches of the peace, and acts of aggression. Procedures were established to permit the United Nations to employ military force to deal with such threats. All UN members would make available to the Security Council, “on its call and in accordance with a special agreement or agreements,” armed forces and other assistance for the purpose of maintaining international peace and security (Art. 43(1)).

… Having approved the Charter, Congress now had to pass additional legislation to implement it and to determine the precise mechanisms for the use of force. The specific procedures, brought into conformity with “constitutional processes,” are included in the UN Participation Act of 1945.

… Nothing in the passage of the Fulbright and Connally resolutions or the history of the UN Charter supports the notion that Congress, by endorsing the structure of the United Nations as an international peacekeeping body, altered the Constitution by reading itself out of the war‑making power. Congress did not ‑‑ it could not ‑‑ do that, a conclusion driven home sharply by the legislative history of the UN Participation Act.

Under the UN Charter, in the event of any threat to the peace, breach of the peace, or act of aggression, the UN Security Council may decide in accordance with Article 41 to recommend “measures not involving the use of armed force.” If those measures prove inadequate, Article 43 provides that all UN members shall make available to the Security Council‑‑in accordance with special agreements‑‑armed forces and other assistance. These agreements would spell out the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. As noted above, it was anticipated that the member states would ratify these agreements “in accordance with their respective constitutional processes.”

“Constitutional processes” is defined in section 6 of the UN Participation Act of 1945. Without the slightest ambiguity, this statute requires that the agreements “shall be subject to the approval of the Congress by appropriate Act or joint resolution.”

The UN Participation Act

Despite this clear legislative history, some point to this Act — specifically 22 USC 287d — as a grant of war powers to the UN. Not so. It gave the President authority to negotiate (subject to Congressional approval) agreements for US forces to be “on call” to the Security Council. No such agreements were ever made, so this legislation has no effect. It does however show Congressional intent that the UN not become a controlling authority for US military force, or that the President cite it as a superiority war-making authority over the US Congress. The relevant text:

The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution, providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter.

The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That, except as authorized in section 287d–1 of this title {noncombatant Assistance}, nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.

How did Truman and Obama involve us in the Korean and Libyan Wars?

Back to Fisher:

Truman violated the unambiguous statutory language and legislative history of the UN Participation Act. How could he pretend to act militarily in Korea under the UN umbrella without any congressional approval? The short answer is that he ignored the special agreements that were the vehicle for assuring congressional approval in advance of any military action by the President.

… Congress was largely passive in the face of Truman’s usurpation of the war power. Some members offered the weak justification that “history will show that *35 on more than 100 occasions in the life of this Republic the President as Commander in Chief has ordered the fleet or the troops to do certain things which involved the risk of war [without seeking congressional consent].” This list of alleged precedents for unilateral presidential action contains not a single military adventure that even comes close to the magnitude of the Korean War. As Edward S. Corwin noted, the list consists largely of “fights with pirates, landings of small naval contingents on barbarous or semi‑barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like.”

What about Jefferson’s attacks against Barbary pirates?

From Fisher:

Arthur M. Schlesinger, Jr., was also an early defender of Truman’s action in Korea. In a letter to the New York Times on January 9, 1951, he disputed the statement by Senator Taft that President Truman “had no authority whatever to commit American troops to Korea without consulting Congress and without Congressional approval” and that by sending troops to Korea he had “simply usurped authority, in violation of the laws and the Constitution.” Schlesinger said that Taft’s statements “are demonstrably irresponsible.” Harking back to Jefferson’s use of ships to repel the Barbary pirates, Schlesinger claimed that American Presidents “have repeatedly committed American armed forces abroad without prior Congressional consultation or approval.”

Schlesinger neglected to point out that Jefferson admitted to Congress that he was “[u]nauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.” It was the prerogative of Congress to authorize “measures of offense also.” Congress enacted eleven statutes authorizing action by Presidents Jefferson and Madison in the Barbary wars.

For more information

Letter to Senate Majority Leader Trent Lott on War Powers and Kosovo, from the ACLU, 30 April 1999 — esp note the documentation at the end.
“Presidential War Powers in a Never-Ending War“, Seth Weinberger (Asst Prof Government, U of Puget Sound), ILSA Journal of International & Comparative Law, Fall 2006
“When Wars Begin: Misleading Statements by Presidents“, Louis Fisher (Library of Congress), Presidential Studies Quarterly, March 2010
“Obama’s new view of his own war powers“, Glenn Greenwald, Salon, 31 March 2011 — The links to relevant documents are priceless. You should feel the Constitutions’s blood seeping on your hands while you read it. But you probably will not, since you don’t care. More appropriately, chant “Baa, Baa, Baa.”

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