Legal Positions of Obama, Cameron, and Sarkozy and the 2011 Libyan Conflict


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  1. #1

    Arrow Legal Positions of Obama, Cameron, and Sarkozy and the 2011 Libyan Conflict

    In March 2011 three nations, The United States, France, and The United Kingdom used military force to establish and enforce a no-fly zone above Libya. Within each nation lives an individual with the weighty responsibility of being the nation’s chief executive and commander-in-chief. Between these nations the title is granted to two presidents and a Prime Minister, but each man must operate within his own nation’s laws and limitations. When intervening in the 2011 Libyan Uprising French President Nicolas Sarkozy, UK Prime Minister David Cameron, and US President Barack Obama each called upon the authority derived from three different constitutions to make a militarily enforced no-fly zone possible, but each came to this conclusion in a different manner.

    In the United States ultimate military authority rests with the President. According to Article II, Section II of the Constitution of the United States the president is named as the commander-in-chief of the armed forces. While individual presidents have approached this role differently, President Obama has the final word on all military actions, including the decision to establish and enforce a no-fly zone in Libya. His actions may be criticized, but no other officer can overrule his decision.

    With a Westminster parliamentary system of government the United Kingdom appropriates military authority slightly differently. The government of the UK operates under the mandate of Royal Prerogative, which are the executive powers bestowed upon the monarch. Under Royal Prerogative the monarch is the commander-in-chief of the armed forces, has the power to make declarations of war and peace, and is recognized as the sole and final authority over the armed forces.[1] However, as the United Kingdom is a constitutional monarchy as opposed to an absolute monarchy these powers are de facto in the hands of the Prime Minister. This Prime Minister, David Cameron, is appointed by the monarch and effectively has the ultimate say on military action and the power to make final decisions regarding the establishment of the Libyan no-fly zone.

    Under the French Constitution the President of the Republic is recognized as Chef des Armées, or Chief of the Armies. This title is bestowed upon the president by the French Constitution, which states, “The President of the Republic shall be commander-in-chief of the armed forces. He shall preside over the higher national defense councils and committees.”[2] Under this title Nicolas Sarkozy has the authority to employ French troops to set up and enforce the no-fly zone in Libya.

    While these commanders-in-chief certainly have the power to make wartime decisions, they each have limitations are placed on that authority. For example, in the United States the President is bound by a 1973 piece of legislation called the War Powers Resolution, the UK Prime Minister’s action must have at least some support from the members of Parliament or he may face a vote of no-confidence, and the French Prime Minister must countersign the President’s decisions. Legislative bodies can also place pressure on the president’s choice by threatening to withhold funding, but this is rare. In some cases these limitations are questioned or even ignored, but they still exist to show that executive authority is not quite ultimate.

    Throughout much of American history, but especially since the Vietnam and Korean Wars, American presidents have been sharply criticized for sending American troops into an extended conflict without a formal, Congressional declaration of war. Some of this debate stems from the manner in which the US Constitution divides war powers between the president and Congress. Article 1, Section 8 of the Constitution grants Congress exclusive power to declare war, raise and support armies, maintain a navy, and appropriate money, while Article 2, Section 2 names the president the commander-in-chief of the military, and Article 1, Section 8 grants the president the power to veto acts of Congress, including a declaration of war.[3]

    In 1973 Congress made its boldest attempt to limit the president’s war-making authority by passing the War Powers Resolution. This law lays out several requirements that the president must satisfy when committing American troops to hostile situations. The resolution requires that the president consult Congress in “every possible instance”[4] before sending American troops into a hostile or potentially dangerous situation. Also, if the president does commit troops he must notify Congress of this decision within 48 hours. The act goes further to forbid troops from remaining in action for more than 60 days unless Congress further authorizes military action or formally declares war.

    This law was intended to limit the president’s power and make it “more difficult to involve the United States in a drawn-out, Vietnam-style war without congressional support or acquiescence.”[5] However, every president has consistently questioned the constitutionally of the War Powers Resolution since its passage, and several conflicts have occurred in which presidents did not satisfy its requirements. For example, neither Jimmy Carter’s 1981 Iranian hostage rescue nor Ronald Reagan’s 1983 invasion of Granada involved consulting with or informing Congress of military action.[6]

    If the War Powers Resolution were to be ignored or declared unconstitutional, Congress may also limit the president’s ability to wage war by evoking their power of the purse. As the Constitution grants Congress the exclusive power to “lay and collect taxes” and “provide for the common defense and general Welfare”[7], they have the power to prevent military action by cutting off funding. However, this action is extremely drastic and will probably never be taken.

    In the United Kingdom the executive’s power is limited in a different fashion. Under Royal Prerogative the Prime Minister’s military authority cannot be directly overruled, but parliament can cut off funding to the military, much as the US Congress could. However a more realistic course of action is the removal of the Prime Minister from office through a parliamentary motion of no-confidence.

    It is an important tenant of the British Constitution that the Prime Minister must retain the confidence of the legislature, as it is assumed that a government cannot properly function without such confidence. If the Prime Minister were to take military action that was strongly opposed by the legislature a vote of no-confidence could be held. If the majority of the legislature votes that they have “no confidence in Her Majesty’s government”[8] then the Prime Minister would be forced to resign or seek the dissolution of parliament and call a new election. Successful votes of no-confidence have only occurred 11 times since 1782, and only once since 1924.

    According to Ben Clift “the [French] president’s constitutional powers appear clearly defined but limited” [9]. The support of the prime minister is an integral part of the French president’s authority. The prime minister, though appointed by the president, must always represent the majority of the legislature. Sometimes the Prime Minister and the President may represent different political parties. On these occasions the French government is in a period of cohabitation. This is rare, but can be significant hindrance to presidential power. As Ezra N. Suleiman observes, “the support of a majority party in the Assembly is critical for presidential power”[10]. Because the prime minister must countersign all decisions made by the president, the prime minister could prevent a military operation by refusing his signature. As Clift puts it, “cohabitation thus marks the revenge of prime minstership . . . the prime minister becomes the main decision-maker within the dual executive”.

    Just as the US Congress and UK parliament can wield their powers of the purse, François Fillon, the current Prime Minister of France could cut off funding for a military operation because he has authority pertaining to budget decisions. However, this is just as unlikely as it would be in the US or UK.

    Excluding periods of cohabitation, compared to the US President and the Prime Minister of the UK, the French President is relatively free to exercise his power as commander-in-chief. There are no formal laws limiting his power, and the President himself appoints the only man capable of disrupting this authority.

    Recently all three of these executives had an opportunity to exercise their military authority through the establishment and enforcement of a no-fly zone over Libya. Prompted by Libyan leader Muammar Gadhafi’s attacks against civilians during the 2011 Libyan Uprising, the United Nations Security Council passed Resolution 1973. This resolution, initially proposed by Lebanon, France, and the United Kingdom called for both an “immediate ceasefire”[11] and the establishment of a no-fly zone above the nation in order to protect civilians.[12]

    As of March 19 French, American, and British troops are officially taking part in the intervention, but the leaders of each nation had to follow a different procedure to get their troops on the ground. Action was not taken unilaterally; rather a coalition was formed by some members of the United Nations, European Union, and North Atlantic Treaty Organization (NATO).

    Nicolas Sarkozy was the first to take international action when, on February 23 he addressed the European Union and called for sanctions against Gadhafi and the Libyan government.[13] Five days later on February 28 David Cameron first proposed implementing a no-fly zone for the safety of civilians and to prevent Gadhafi from flying in mercenaries. On March 11 Cameron and Sarkozy jointly called on the international community for the immediate establishment of a no-fly zone.[14] By March 17 the UN Security Council passed their resolution with the support of the USA and nine other nations, including France and the UK.[15]

    On March 21, two days after American troops became involved, President Barack Obama sent a letter to the Speaker of the House of Representatives and President Pro Tempore of the Senate, notifying them of the military action being taken by US forces in accordance with the War Powers Resolution.[16] In this letter Obama first describes the situation, writing “U.S. military forces, under the command of Commander, U.S. Africa Command, began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone.” He continues to defend the mission, saying, “The United States has not deployed ground forces into Libya. United States forces are conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster.” Recognizing both his position as commander-in-chief and the legitimacy of the War Powers Resolution he ends the letter:

    I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive. I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution.[17]


    While Obama was struggling with the decision to commit American troops to Libya in the face of some domestic disapproval, Nicolas Sarkozy was forcefully pushing his position from the start. By March 10 Sarkozy had announced that France officially “recognized an inchoate opposition group as Libya’s legitimate government”.[18] His choice to have France take the lead on the Libyan intervention was at least in part a political move. Suffering in public opinion polls and with an election on the horizon, Sarkozy was “motivated by French failures to respond quickly to the revolutions in Tunisia and Egypt” and “came together with Britain to drag Europe and the United States toward a military engagement”[19]

    The ease with which Sarkozy was able to engage troops into combat shows stark contrast to the US and UK in terms of limitations on his authority when not in a period of cohabitation. The New York Times reported that “France on Tuesday [April 4] found itself engaged in three shooting wars at once for the first time in memory, indicating a new muscularity in using power by the politically embattled French president, Nicolas Sarkozy.”[20]

    One must rethink the way executive war powers are exercised in the United States. The formal declaration of war is an outdated concept. Today’s military operations are unimaginably different than they were when the United States was founded, and show little resemblance to operations in World War II, our last declared war nearly seventy years ago. America’s modern “wars” are rarely wars against nations with organized, centralized authority structures. Both the government and media proclaim that we are at war with concepts, rather than nations, hence our current “War on Terror”[21] and “War on Drugs”[22].

    We tend to find ourselves engaged in short-term conflicts against militias, fringe groups, and rebels. In the age of nuclear weapons active shooting wars between the United States and another powerful national government seem an unlikely concept, especially with the powerful international presence of peacekeeping organizations such as NATO and The United Nations. In a modern world where information can circle the globe in milliseconds Congress should not be wasting time with formality, especially when national security may be at stake.[23]

    Modern wars need to be covert and in some cases secrecy is beneficial. Back when the Constitution was written the US Congress could declare war on France and no Frenchman would know about it for four weeks. In 2011 the entire world could find out in seconds. It simply isn’t in the nation’s best interests for Congress to shout “we’re coming for you, get ready” by declaring war. After completing this assignment it is my opinion that the US President should be relatively free to exercise his authority as commander-in-chief of the armed forces. The Constitution, interpreted in a modern context would recognize the War Powers Resolution as both unconstitutional and inherently harmful to the nation as a whole.


    [1] The Royal Prerogative

    [2] The French National Assembly - Constitution of October 4, 1958

    [3] U.S. CONSTITUTION

    [4] Nelson, Michael. The Evolving Presidency. Washington, DC: CQ Press, 2008. 221.

    [5] Nelson, The Evolving Presidency, 221

    [6] Nelson, The Evolving Presidency, 222

    [7] Article I | LII / Legal Information Institute

    [8] HC S: [Confidence in Her Majesty's Government] | Margaret Thatcher Foundation

    [9] Clift, Ben. "Dyarchic Presidentialization in a Presidentialized Polity: The French Fifth Republic". The Presidentialization of Politics. Poguntke and Webb. New York: Oxford University Press, 2009. 222-223.

    [10] Sulieman, Ezra. “Presidentialism and Political Stability in France”. The Failure of Presidential Democracy, Volume 1. Linz and Valenzuela. Baltimore: John Hopkins University Press, 1994. 150.

    [11] Security Council Approves ‘No-Fly Zone’ over Libya, Authorizing ‘All Necessary Measures’ to Protect Civilians, by Vote of 10 in Favour with 5 Abstentions

    [12] http://www.nytimes.com/2011/03/19/wo...ca/19libya.htm

    [13] http://online.wsj.com/article/BT-CO-...23-707915.html

    [14] http://www.nytimes.com/2011/03/21/wo.../21france.html

    [15] UN security council resolution 1973 (2011) on Libya

    [16] http://online.wsj.com/article/BT-CO-...21-713710.html

    [17] http://c-span.org/uploadedfiles/Cont...litary.rel.pdf

    [18] http://www.nytimes.com/2011/03/19/wo.../19europe.html

    [19] http://www.nytimes.com/2011/03/21/wo.../21france.html

    [20] http://www.nytimes.com/2011/04/06/wo.../06france.html

    [21] FBI — Terrorism

    [22] White House Czar Calls for End to 'War on Drugs' - WSJ.com

    [23] The War Powers Resolution: An Unnecessary, Unconstitutional Source of "Friendly Fire" in the War Against International Terrorism? » Publications » The Federalist Society

  2. #2
    Well researched and very clearly written. While brief, the most salient points are covered in a way that makes them clearly understood. If this is for a class assignment it deserves high marks.
    El día ha sido bueno. La noche será larga.

  3. #3
    Not much common knowledge involved here, meaning, it's very apparent that you put a lot into this. Credible, authoritative sources are used and it is clearly written and well researched... as Garza said. I enjoyed it, and most importantly, I learned something. Well done.

  4. #4
    An impressive piece of work and has been said already, 'well written'.

    However, as a 72 year old citizen of the United Kingdom I was a little concerned to read your conclusion:

    "it is my opinion that the US President should be relatively free to exercise his authority as commander-in-chief of the armed forces"

    I have lived much of my life on the wind swept island situated roughly half way between two warring powers, namely the USA and the USSR.
    I had no reason to believe that Mr Stalin played the game of war by the rules. Over the years, I have also been in doubt several times as to whether the President of the USA was intellectually capable of handling the enormous power at his command. That Mr Kennedy took us very close to annihilation.

    Several times I have felt the need to cross my fingers and hope that Armageddon was not about to happen. To me there was no doubt that neither the US nor the USSR could afford for the island of Great Britain to be used as a military base in time of war. If the Russian army had ever reached the Channel coast then the Americans would most likely have nuked this island. Only a few nuclear missiles would be necessary to render it inhabitable.

    We Brits have been taken to war so often by our political masters that it is now almost a tradition to do so. As a nation we were rendered bankrupt in 1918 and in 1945 by the cost of waging an all out modern war against the Germans who thankfully are now a pacifist ally. Even now when the nation's debt has reached astronomical proportions, we are currently fighting two relatively modest wars - Afghanistan and Libya - yet both are unpopular with the citizenship. We have only just withdrawn from Iraq. However, as you point out so eloquently, the Prime Minister has the power to order: "open fire".

    Sometimes I ask myself just how do the Swiss and the Swedes manage to stay neutral when nations all around them start to talk of war?

    I should like to think that a man of your intelligence could start to work on an ideal constitution fit for the World of Nations to adopt.
    Maybe then the ever increasing population of Earth could come together to work out how to: restrict a dictator's power to order the killing of his opponents.

    DV

    I'd love to read something else written by you - but perhaps on a lighter subject.
    
    Last edited by Divus; July 23rd, 2011 at 01:01 PM.

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