The Law: Military Operations in Libya: No War? No Hostilities?

Authors


  • AUTHOR'S NOTE: Thanks to David Gray Adler, Richard Pious, and Robert Spitzer for valuable suggestions on this article. Some of the analysis in this article is drawn from Fisher's testimony before the Senate Foreign Relations Committee on June 28, 2011, http://loufisher.org/docs/wplibya/libyasenfr.pdf.

Louis Fisher is Scholar in Residence at The Constitution Project. He spent four decades at the Library of Congress from 1970 to 2010, first as Senior Specialist in Separation of Powers at the Congressional Research Service and later as Specialist in Constitutional Law at the Law Library. Many of his articles, books, and congressional testimony are available at http://loufisher.org.

Abstract

The Obama administration produced two remarkable legal opinions about the use of military force against Libya. A memo by the Office of Legal Counsel reasoned that the operations did not amount to “war.” Later, after military actions exceeded the 90-day limit of the War Powers Resolution (WPR), President Obama was advised by White House Counsel Robert Bauer and State Department Legal Advisor Harold Koh that the operations did not even constitute “hostilities” within the meaning of the WPR. This article examines those interpretations and other legal arguments by the executive branch, including the claim that the military actions in Libya had been “authorized” by the UN Security Council and North Atlantic Treaty Organization allies.

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