Congress Denies Authority for War in Libya

One thing is clear after the House of Representatives considered two measures regarding military action in Libya last Friday — the president does not have authority to take the United States to war there.

In March, we wrote to members of Congress to urge them to assert their role under the Constitution to decide whether or not the American military can be used in Libya. And we later wrote to the president himself urging him not to violate both the Constitution and the War Powers Act. After more than three months of American planes and drones in Libya, a presidential violation of the Constitution and the War Powers Act and a Congress that was too nervous to actually vote on anything, the House finally stepped up to the plate and asserted its constitutional authority to decide whether the country’s military should be in Libya.

The two measures that were up for consideration were H.J. Res. 68, that would have authorized the president to deploy the military as part of the NATO mission in Libya, and H.R.2278, that would have limited the U.S. role in Libya to search and rescue, surveillance and reconnaissance, aerial refueling, and operational planning as part of the NATO campaign in Libya.

To be clear, the ACLU did not take a position on whether the military should be in Libya, but we urged Congress to make a decision— and be specific about its decision. In advance of the floor debate, the ACLU sent a letter that strongly urged opposition to H.J. Res. 68 and H.R.2278 unless the language was amended to identify the specific countries or persons against whom the use of force would be authorized as well as to be much more specific about the scope of the conflict and the objectives of the United States.

The letter states:

Without additional specificity in H.J. Res. 68 and H.R. 2278, Congress will be unable to fulfill its constitutional role as a check on the Executive Branch. The decision to initiate was is perhaps the gravest and most consequential decision Congress can make. Only by specifically identifying and enemy, limiting the scope of the conflict, and specifying clear objectives for the President to meet, can Congress both ensure that all Americans can understand the consequences of any war decision and participate in the debate, and avoid an open-ended delegation of its constitutional war authority to the Executive Branch.

The House floor debate took up the larger part of the morning Friday and extended into the early afternoon as the House looked to wrap up pressing legislative matters before its Independence Day recess next week.

The roll call votes show that both measures were met with overwhelming opposition. H.J. Res. 68 failed by a vote of 123 (Republicans: 8, Democrats: 115) in favor to 295 (Republicans: 225, Democrats: 70) against. H.R. 2278 also failed, by a vote of 180 (Republicans: 144, Democrats: 36) in favor to 238 (Republicans: 89, Democrats: 149) against.

Now that the House has clearly denied the president any authority under the Constitution for the war in Libya, the president should end the country’s involvement there. But there is still one more debate to watch. The Senate will take up the matter this week in the Foreign Relations Committee and will mark up its version (S.J. Res. 20) of the House bill that failed Friday. Again, the ACLU has not taken a position on the war in Libya but we did write a letter to the Senate expressing our concerns with the proposed language and lack of specification in defining the war authority granted to the Executive Branch.

But with the House telling the president he does not have authority to use the military in Libya, what the Senate does really doesn’t matter, does it? The only way for Congress to authorize the president to continue in Libya is if both the Senate and the House say “yes.” The House said “no” twice today. So, war over, Mr. President.

Please continue to check in here to read the latest regarding Libya.

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