Brief Observation On The Non-War In Libya

As many people already have noted, President Obama has violated the Constitution by ordering the use of force in Libya without first procuring a declaration of war from Congress. This is unnerving indeed, not only because the Founders were highly motivated by a desire to escape the king's ruinous unilateral wars, but also because Obama himself chided former president Bush for this outlaw behavior in Iraq. The administration dresses this up as "kinetic military action" under a UN mandate rather than a war, stealing a page from the Truman administration (who labeled the undeclared war in Korea as a "police action" under a UN mandate as well).

What nobody bothers to mention is that the UN mandate itself is illegal, just as it was with Korea. Article 27(3) of the UN Charter requires the Security Council to obtain all five concurring votes of the permanent members for an enforcement action such as this, yet neither here nor sixty years ago did all five members give a concurring vote.

With Korea, one permanent member (the USSR) was absent during the vote as a protest against the fact that Taiwan rather than communist China occupied a permanent seat on the Council. Taking advantage of the USSR's absence, the other four permanent members voted in favor of the "police action," and the rest is history even though the USSR's abstention clearly was not a concurring vote. Just like our own Constitution, the UN Charter as written carries no weight and has seen many similar illegal votes over the decades since -- an abstention is treated as a concurrence, and only an affirmative veto is treated as a non-concurrence.

Cue to the present resolution authorizing "kinetic military action" in Libya, where two permanent members (China and Russia) did not give a concurring vote, and yet the Security Council acts as if it has a full mandate to bomb away.

But it gets even worse. Even if the vote complied with the voting procedures as written, the fact remains that the Security Council has no authority to intervene in purely domestic strife such as this. Instead, its powers under Chapter VII of the UN Charter are designed to maintain "international peace and security." It comes as no surprise that the resolution at issue here wields that convenient phrase, much the same way that legislation from Congress often wields the phrase "interstate commerce" to bless all manner of illegal mischief.

Finally, international law does not treat one form of government as better or more legitimate than another -- whether Libya is ruled by a single dictator or a sleazy, corrupt variant of modern "democracy" has no bearing on Libya's sovereign rights, which are being violated in the name of liberty. Alas, liberty means nothing without independence, a point we made rather emphatically in 1776.