Friday, April 01, 2011

The legal issues in American involvement with UN action in Libya

Today I’m writing about the United Nations intervention in Libya. It seems to me that many people are opposed to the participation of the United States in this Libyan action. Evidently there have been opinion polls showing only about half of Americans support the use of American military in attacking Libyan air defenses and military equipment and soldiers. One point of this oppositions seems to hold there is something illegal in an American president ordering the use of American military force in acts of war (not declarations of war) without first getting consent from Congress.  
There are a few ways that American military forces can become engaged in acts of war.  
The first method, a method that has been used five times in American history, is for Congress to declare war.  This is contained in Article I, Section 8, Clause 11 of the Constitution. We know from records of the Constitutional Convention (and various other records illuminating the process of drafting the Constitution) that “declare” was the verb chosen because people (e.g., James Madison and Elbridge Gerry) wanted the president to have the ability (as Commander and Chief of American armed forces) to act suddenly to repel attacks without waiting for Congress to authorize defensive military action. The American Congress has declared war on the United Kingdom (1812), Mexico (1846), Spain (1898), Germany and Austria-Hungary (1917), and Japan, Germany, Italy, Bulgaria, Hungary, and Romania (1941 & 1942). 
The second method, a method that was modified by various War Powers Resolutions (see chapter 33 of Title 50 of the United States Code), allows the President to engage in hostilities short of war with the approval of Congress. Under the current law, the President must consult with Congress before introducing forces into hostilities, must report to the Speaker of the House of Representatives and President pro tempore of the Senate a report about American armed forces engagement in hostilities, and must get authorization from Congress in order to continue military action beyond 60 days (see Title 50, Chapter 33, Section 1544).
A third method exists under the Supremacy Clause of the Constitution (Article VI, paragraph 2), which states that the Constitution and federal laws and treaties have the force of law and have supremacy over state laws. This part of the Constitution effectively means that when the Congress ratifies a treaty signed by the President, the treaty becomes part of American law.  For example, the United Nations Charter, which was signed by President Harry Truman and was ratified by the American Congress (Senate) on July 28th of 1945, has the force of law in the United States, just as much as the War Powers Act of 1973 (Title 50, Chapter 33, Sections 1541-1548 of the United States Code).  If a treaty (for example, a mutual defense treaty, as the United States has with NATO partners) says that the United States will commit to the military defense of some other country when that country is attacked, and then that country is attacked, the United States is legally obliged to provide for that country’s defense.  
It is not entirely clear whether a military act conducted because of legal implications of treaty obligations must also be subjected to the requirements of Chapter 33 of the United States Code (War Powers Act). For instance, if Congress refused to authorize military action, but the military action was required by a treaty obligation, I suppose the Supreme Court would need to decide whether the Supremacy Clause authorized the President to continue the use of military force despite the lack of approval from Congress, as required by the War Powers Act.  My sense is that treaties probably take the force of federal law with supremacy over federal law, since Congress or the President can rescind or withdraw from a treaty, and if they haven’t done so, this implies that the particulars of the treaty remain in force and have not been repudiated. Also, in order for a nation to have the ability to even enter into treaties it is a fundamental requirement that governments be able to enforce or hold to treaty obligations. So if American law allowed Congress to cancel treaty obligations by simply passing laws that had supremacy over treaties, without rescinding or withdrawing from the treaties, that would pretty much ruin the American government’s ability to even make treaties, as there would be no credibility in assurances that the American government would hold to their treaty obligations.
Another point here is that a treaty may request or permit military actions without requiring military action.  If the United Nations Security Council passes a resolution asking all United Nations member nations to unite in carrying out whatever is necessary to effect the destruction of some military force that threatens civilians, this resolution may not impose on the President the same sort of obligation to act that a mutual defense treaty does.  So, if a treaty puts some obligation on a President to do something, but does not specifically require the President to commit armed forces to acts of war or military hostilities, then there arises a question of whether the request can be used to authorize the use of American forces under treaty obligations and the Supremacy clause, or whether the lack of a specific obligation for military action makes American action discretionary, in which case a President would perhaps be more likely need to follow the War Powers Act. 
So now, let’s look at some facts here.  First of all, the Supremacy Clause in the Constitution has had plenty of history in the Supreme Court, and many state laws have been overturned because they conflicted with Treaty rights.  Here are some examples of cases in which treaties were in conflict with state or local laws and ordinances, and the Supreme Court found that the rules in the treaties voided state laws or local ordinances:
Ware v Hylton (1796) and
Hopkirk v. Bell (1807) and
Foster v. Neilson (1829) and
the Head Money Cases (1884) and
Geofroy v Riggs (1890) and
Nielsen v. Johnson (1929) and
Kolovrat v. Oregon (1961)
But what about contradictions between a federal law and a treaty? Or what about when there are two different processes to follow, one described in a federal law and another described in a treaty?  I am not aware of any Supreme Court decisions on these questions. I’m confident that a contradiction between a federal law and a treaty would be resolved in favor of the treaty, because while older laws my be nullified or modified by later laws, treaties are nullified or modified by diplomatic actions and the process of withdrawing from a treaty or rescinding it or repudiating it. As to the the situation where a treaty allows one sort of process and a federal law allows a different process, for committing troops to some hostile activities, for example, I’m not sure what the Supreme Court would decide. I think there is a good case that a President ought to follow both a treaty and a federal law when there was no contradiction between the two.  I also think that because it’s very important that an American government have credibility in international diplomacy, a good case can be made that processes or conditions given in treaties would have primacy over federal laws. 
Let’s consider the source documents.  First of all, here is the U.S. Constitution. Article VI, paragraph 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
So, Treaties made under the Authority of the United States are the supreme Law of the Land. Yes, but so are Laws of the United States. 
Now, let’s consider the United Nations Charter.  It was passed by the Senate on July 28, 1945, by a vote of 89-2.  President Truman had already signed the Charter, and the UN Charter was signed by 50 nations in San Francisco on June 26 of 1945.  By the provisions of the United Nations Charter, it came into force on October 24, 1945 (after the five permanent members had all ratified it). The United States has not withdrawn from the United Nations, and has not repudiated or rescinded its charter.
Next, we should consider United Nations Charter, especially Articles 24 and 42, which bear on the use of force.  
Here is Chapter V, Article 24, sections 1 and 2, and also Article 25.
Article 24 (1):  In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
Article 24 (2):  In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.
Article 25:  The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.
This seems to me to tell us that, by American law (the Charter has the force of law according to the American Constitution and the fact that we have signed and ratified the U.N. Charter), that America (and about 190 other countries) have given the Security Council primary responsibility for maintaining international peace and security, and the Security Council acts on behalf of the United States when it carries out its duties. This implies, to me at least, that if the United Nations Security Council says that such-and-such is required for international security, it’s the same thing as if the American Congress has said that such-and-such is required.  That is, the U.N. Security Council can act on behalf of the United States (our Congress and President) in carrying out duties to maintain international peace and security.
Next, let’s examine articles 41 and 42 (in Chapter VII) of the United Nations charter:
Article 41:  The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Article 42:  Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
Following Article 42 are eight more articles (Articles 43-50) related to the use of force. Among these are Article 49: 
The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.
So, the United Nations Charter does allow the Security Council to decide that military action (“other operations by air, sea, or land forces...”) should be taken. It also provides for the United States to join in carrying out such measures. The Charter also makes the Security Council an entity that acts on behalf of the United States.  So, it seems clear to me that acts of the Security Council are legitimate and legal means for the United States President to commit American forces to hostilities. 
 Has the United Nations Security Council authorized the use of force or made some sort of a call that would authorize the U.S. President to commit armed forces to hostile action in Libya?  Yes, Resolution 1973 made two demands (complete end to violence and all attacks against, and abuses of, civilians... and Libyan authorities comply with their obligations under international law, including international humanitarian law, human rights and refugee law...).  Security Council Resolution 1973 also made a decision to establish a flight ban over Libya.  And then it authorized member states to take all necessary measures to enforce this. Here is point 4 of the resolution:
Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, 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, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council;
So, it seems pretty clear to me that the President can send military forces to Libya, but he can’t place an occupation force there. He is authorized to do this by Security Council Resolution 1973 and the United Nations Charter and the second paragraph of Article VI in the U.S. Constitution. It seems likely to me that this authorization is the only authorization he needs, given the language of the United Nations Charter, and that Chapter 33 of Title 50 of the United States Code (the War Powers Act) does not take precedence over the United Nations Charter.  However, in keeping with the spirit of the Constitution and Chapter 33 of Title 50, I think the president ought to observe the procedures and obligations of the War Powers Act. The Senate’s ratification of the U.N. Charter back in 1945 already authorizes this particular application of force in Libya, and also addresses the concerns that motivated the authors of our Constitution to give war-declaring powers to Congress (they were concerned with the history of despots and monarchs declaring war and claiming wars were necessary for their nations, when in fact the wars were not necessary, and were actually quite costly and wasteful, and often immoral as well).  
My understanding is that the War Powers Act applies to American unilateral military action or joint military action with international allies when that action is not specifically authorized by ratified treaties.  The War Powers Act ought not apply in cases of American military action authorized by ratified treaties, as for example in cases where the United Nations Security Council has authorized the use of armed forces, or when one of our NATO allies has been attacked.  Still, there is no harm in observing the requirements of the War Powers Act, and there is probably great benefit in doing so, so I think the Obama administration ought to go along with the rules about notification and consultation, and perhaps seek some sort of a Congressional endorsement of any prolonged (more than 60 days) military involvement.  
Incidentally, someone was saying that too much effort has gone into inventing and deploying weapons, and not enough effort has gone into figuring out a way to have peace.  They were speaking about the conflict in Libya, but making a general observation about the allocation of resources in this world.  I agree, but I wanted to point out that there are already some very satisfactory suggestions and institutions for establishing peace.  The person asked about a blueprint for peace.  Here was my response:
A blueprint for peace? Have you read the charter of the United Nations? Or how about the writings of peace activists, visionaries, and spiritual leaders such as ‘Abdu’l-Baha, Mohandas Gandhi, Martin Luther King, Malread Maguire, etc.? Or speeches of various winners of the Nobel Peace Prize? There are many blueprints for peace. It’s up to us to build the structures outlined in these blueprints.