War Powers

U.S. Intervention in Libya Will Likely Take Place Without Congressional Authorization [Updated]

By Jack Goldsmith
Thursday, March 17, 2011, 10:30 PM

The U.N. Security Council has authorized “all necessary measures” to protect Libyan civilians, but we still have no word on whether the President thinks he needs congressional authorization to intervene in Libya, or whether Congress would give it to him if he asked.  In any event, Congress just went into recess, and it won’t be back until March 28.  Given Ghadaffi’s quick march toward Benghazi, the urgency with which the Obama administration pushed through the UNSCR today, and the tone of its new rhetoric about Libya, it appears that the administration is preparing to intervene in some fashion very soon, and certainly before Congress comes back from recess.  It is possible that the Administration rushed through the UNSCR but doesn’t plan to participate in military action in Libya until after it gets Congress’s approval in a few weeks.  Perhaps it will let other nations take the lead in the interim.  But I doubt it.  If I am right, the American action in Libya will take place without congressional authorization.  Tomorrow morning I will summarize how the Libya UNSCR provides important legal support under the U.S. Constitution for such a unilateral intervention.

Update: When asked today by Senator Corker whether the administration believes congressional authorization is necessary to intervene militarily in Libya, Undersecretary of State for Political Affairs Bill Burns replied: "I can’t give you a yes-no answer.”

Update 2:  Secretary Burns gave a classified briefing for Senators today.  Josh Rogin at FP reports: “Several senators emerged from the briefing convinced that the administration was intent on beginning military action against the forces of Col. Muammar al-Qaddafi within the next few days and that such action would include both a no-fly zone as well as a ‘no-drive zone’ to prevent Qaddafi from crushing the rebel forces, especially those now concentrated in Benghazi.”  Senator Graham said of the looming intervention: “We're talking days, not weeks, and I'm hoping hours, not days.”  Rogin reports that Senator Lugar says the administration should seek congressional approval.  But Senator Graham disagrees:  “You can't have 535 commander in chiefs.  I would like to have a vote in the floor when we get back saying they did the right thing.  But that shouldn't restrict the president from taking timely action.”