Media debates over the U.S./NATO war in Libya have often amounted to proponents arguing for "humanitarian" intervention while conservative critics worry about Barack Obama's management of the war. But the question of the war's legality should be a front and center concern.
Obama's decided to wage war on Libya without seeking congressional approval. Under some interpretations of the War Powers Act, a president can do this for 60 days, a deadline that passed on Friday, May 20. After this, according to the law, military action without Congress's authorization is illegal.
The approaching deadline attracted little media coverage. The most prominent was a Washington Post op-ed by Yale professors Bruce Ackerman and Oona Hathaway (5/17/11), who argued that if the White House does not get congressional approval, "history will say that the War Powers Act was condemned to a quiet death by a president who had solemnly pledged, on the campaign trail, to put an end to indiscriminate warmaking."
Beyond that op-ed, coverage was minimal. There was a substantive report by Dana Bash on CNN's Situation Room (5/19/11), where she noted that "the president may be on the brink of breaking the law if he continues the mission without Congressional approval." The War Powers Act was also briefly mentioned on Fox News Channel's Special Report (5/13/11).
The Beltway newspaper the Hill had a May 20 headline, "Lawmakers Largely Silent on War Powers Authority in Libya." The same could be said for the media.
The passing of that deadline saw a slight increase in coverage, in part due to the White House's efforts to explain its position. The New York Times (5/21/11) and the Washington Post both reported on the matter (5/21/11), as did NPR's All Things Considered (5/20/11). CNN host Anderson Cooper (5/20/11) read from a statement from Deputy Secretary of State James Steinberg, and responded: "I mean, saying he's acting consistent with it and yet not actually following it, I don't quite understand what that means."
There are legal questions surrounding the Libya War relating to international as well as domestic law. The London Sunday Telegraph (5/14/11) published an interview with NATO commander David Richards, who stressed his desire to expand the war. As the Telegraph put it: "Richards said he wanted the rules of engagement changed so that direct attacks can be launched against the infrastructure propping up Gadhafi's regime. Otherwise he fears the Libyan dictator will survive in power." Richards spoke of the need to "tighten the vice" on Moammar Gadhafi, adding:
These comments did not go entirely unnoticed--but produced little in the way of serious scrutiny or challenge. On May 16, the New York Times noted:
And the following day, a Times report (5/17/11) included a Libyan official's account of the damage to civilian infrastructure:
Mr. Ayad said the network, one of the most advanced in the Arab world, had already suffered more than $1 billion in damage from NATO raids. In a PowerPoint display, he pinpointed areas that had taken the heaviest hits, including several in and near Surt, Colonel Gadhafi's hometown, on the Mediterranean coast.
The Times (4/27/11) had previously reported on this "more energetic bombing campaign" that included an attack "that temporarily knocked Libyan state television off the air." Such actions could be violations of the Geneva Conventions and the limits on targeting a country's civilian infrastructure (FAIR Blog, 4/27/11).
The Times article dwelt on the lessons from NATO's bombing of Serbia, and the understanding that attacking civilian targets--described as "high-profile institutional targets in Belgrade"--were a key part of the strategy. One retired general put it this way: "It was when we went in and began to disturb important and symbolic sites in Belgrade, and began to bring to a halt the middle-class life in Belgrade, that Milosevic's own people began to turn on him." The implication was that NATO should likewise try to "bring to a halt the middle-class life" in Libya--a strategy that would be a war crime according to the Geneva Conventions.
A real discussion of the legality of the Libya War needs to include a serious discussion of these legal matters--regardless of whether Congress, the White House or NATO decides to follow the law.