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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

Intervening in Libya – Domestic Law Authority

Jack Goldsmith posted the following blog post on Lawfare blog this morning, Monday March 7, 2011. His post, entitled "Intervening in Libya – Domestic Law Authority," considers the domestic legal authority of the President should he decide to intervene in Libya. Goldsmith asks, "(1) Will he seek formal congressional authorization?, and (2) if not, does he have the legal authority to order U.S. troops to conduct air raids, enforce a no-fly zone, and perhaps more, without congressional authorization?"

Goldsmith writes:

"The answer to (1) involves a tradeoff: Presidents are better off legally and politically if Congress is expressly on board, ex ante, for a military intervention; but getting Congress’s approval can take time and political energy, Congress can impose constraints, and Congress might decline to give such approval, as the House of Representatives did, by a tie vote, in refusing to authorize President Clinton’s Kosovo bombings in 1999.  (The last three express ex ante approvals Congress gave for military interventions were the 2002 Authorization to Use Force in Iraq, the 2001 AUMF against those responsible for 9/11, and the 1992 AUMF for Iraq.)

The answer to (2) is probably yes, but the strength of the arguments depend on facts on the ground in Libya, the type of military intervention the President employs, and what the U.N. Security Counsel does.  Little judicial precedent concretely addresses this issue, but plenty of executive branch precedent does, and the War Powers Resolution looms in the background.  (Below are web-available links to the major OLC Legal Opinions – some more carefully and cautiously reasoned than others – related to unilateral military intervention during the past few decades.)  The bottom line as I see it, very briefly, is as follows.  (I will try to supplement this cursory analysis – which is much too simple – as events unfold.)"

For the full text of the Lawfare blog, click here


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