In a post this morning at Balkinization, Mark Tushnet argues that President Obama need not seek Congressional approval for U.S. participation in the Libyan Civil War because this armed conflict is not a “war” within the meaning of the Declare War clause. Mark’s argument proceeds in two major steps, which I paraphrase below (my apologies if I’ve misunderstood or misstated his argument):
1. The “distinguishing characteristic of a ‘war’” in the Founding Era “was that it opened up the nation to lawful retaliation, giving the target nation a lawful privilege to kill U.S. soldiers.”
2. UNSCR 1973 not only provides jus ad bellum authorization to other states to use force against Libya, but also precludes Libya from lawfully using force in response. Libya’s soldiers, on this view, lack combatant’s privilege to use force against their opponents.
Therefore: The current armed conflict is not a “war” of the kind committed to the discretion of Congress by the Constitution.
I don’t think this argument works, even if we assume that the Founding Era understanding should control (as opposed to giving more weight to practical precedent such as Korea or Kosovo), for reasons I’ll explain in reverse order.
The second premise above is incorrect because it conflates the jus ad bellum question of whether Libya lawfully may resort to force and the jus in bello question of whether Libya’s armed forces possess the combatant’s privilege when using force. To illustrate the point, imagine that a Libyan fighter pilot (in uniform, bearing arms openly, as part of a responsible chain of command, conducting operations in accordance with the laws of war) somehow manages to shoot down a U.S. plane, and then bails out of his own damaged plane and ends up in U.S. custody. That pilot is a POW, in my view, and if prosecuted for murder or destruction of property for having shot down the U.S. jet he’d be entitled to the defense of combat immunity—regardless of the jus ad bellum status of a Libyan government decision to use force to resist UNSCR 1973—just as in 2003 American soldiers were entitled to combat immunity for their belligerent actions in the course of invading Iraq even if one believes the U.S. government lacked jus ad bellum justification for the invasion. In short, I just don’t think combat immunity enters into this issue.
The more interesting question, in my view, is whether the first premise might be saved by just dropping its reference to combat immunity, and restating it as follows: “War” within the meaning of Article I refers only to conflicts in which the opponent can resort to force consistent with jus ad bellum principles. If that is an accurate description of the Constitution’s allocation of war powers, then UNSCR 1973 might indeed have the impact Mark describes. But I don’t think this relatively nuanced distinction was understood or intended to be part of the domestic allocation of war powers at the time of the Founding, nor do I think it has played much of an overt role in subsequent practice (note Mike Ramsey here, observing that Truman attempted an argument along these lines as to Korea and also noting that this move was not well-received). I’m open to being persuaded otherwise, but for the moment consider me unconvinced.
At the end of the day, it seems to me that the domestic legality of the US intervention still must stand primarily on the argument that presidents have established this authority (i.e., to wage limited war for non-defensive purposes) through a pattern of practice that has not been sufficiently contested by Congress. As to that, the pattern of truly on-point past practice is thin, but as Jack observes, it is less thin now.