Authority to Use Military Force in Libya
The President had the constitutional authority to direct the use of military force in Libya
because he could reasonably determine that such use of force was in the national inter-
est.
Prior congressional approval was not constitutionally required to use military force in the
limited operations under consideration.
April 1, 2011
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
This memorandum memorializes advice this Office provided to you,
prior to the commencement of recent United States military operations in
Libya, regarding the President’s legal authority to conduct such opera-
tions. For the reasons explained below, we concluded that the President
had the constitutional authority to direct the use of force in Libya because
he could reasonably determine that such use of force was in the national
interest. We also advised that prior congressional approval was not consti-
tutionally required to use military force in the limited operations under
consideration.
I.
In mid-February 2011, amid widespread popular demonstrations seek-
ing governmental reform in the neighboring countries of Tunisia and
Egypt, as well as elsewhere in the Middle East and North Africa, protests
began in Libya against the autocratic government of Colonel Muammar
Qadhafi, who has ruled Libya since taking power in a 1969 coup. Qadhafi
moved swiftly in an attempt to end the protests using military force. Some
Libyan government officials and elements of the Libyan military left the
Qadhafi regime, and by early March, Qadhafi had lost control over much
of the eastern part of the country, including the city of Benghazi. The
Libyan government’s operations against its opponents reportedly included
strafing of protesters and shelling, bombing, and other violence deliber-
ately targeting civilians. Many refugees fled to Egypt and other neighbor-
ing countries to escape the violence, creating a serious crisis in the region.
On February 26, 2011, the United Nations Security Council (“UNSC”)
unanimously adopted Resolution 1970, which “[e]xpress[ed] grave con-
20
Authority to Use Military Force in Libya
cern at the situation in the Libyan Arab Jamahiriya,” “condemn[ed] the
violence and use of force against civilians,” and “[d]eplor[ed] the gross
and systematic violation of human rights” in Libya. S.C. Res. 1970, U.N.
Doc. S/RES/1970 (Feb. 26, 2011); Press Release, Security Council, In
Swift, Decisive Action, Security Council Imposes Tough Measures on
Libyan Regime, Adopting Resolution 1970 in Wake of Crackdown on
Protesters, U.N. Press Release SC/10187/Rev. 1 (Feb. 26, 2011). The
resolution called upon member states, among other things, to take “the
necessary measures” to prevent arms transfers “from or through their
territories or by their nationals, or using their flag vessels or aircraft”; to
freeze the assets of Qadhafi and certain other close associates of the
regime; and to “facilitate and support the return of humanitarian agencies
and make available humanitarian and related assistance” in Libya. S.C.
Res. 1970, ¶¶ 9, 17, 26. The resolution did not, however, authorize mem-
bers of the United Nations to use military force in Libya.
The Libyan government’s violence against civilians continued, and
even escalated, despite condemnation by the UNSC and strong expres-
sions of disapproval from other regional and international bodies. See,
e.g., African Union, Communique of the 265th Meeting of the Peace and
Security Council, PSC/PR/COMM.2(CCLXV) (Mar. 10, 2011) (describ-
ing the “prevailing situation in Libya” as “pos[ing] a serious threat to
peace and security in that country and in the region as a whole” and
“[r]eiterat[ing] AU’s strong and unequivocal condemnation of the indis-
criminate use of force and lethal weapons”); News Release, Organization
of the Islamic Conference, OIC General Secretariat Condemns Strongly
the Excessive Use of Force Against Civilians in the Libyan Jamahiriya
(Feb. 22, 2011), http://www.oic-oci.org/topic_detail.asp?t_id=4947&x_
key= (last visited ca. Apr. 2011) (reporting that “the General Secretariat
of the Organization of the Islamic Conference (OIC) voiced its strong
condemnation of the excessive use of force against civilians in the Arab
Libyan Jamahiriya”). On March 1, 2011, the United States Senate passed
by unanimous consent Senate Resolution 85. Among other things, the
Resolution “strongly condemn[ed] the gross and systematic violations of
human rights in Libya, including violent attacks on protesters demanding
democratic reforms,” “call[ed] on Muammar Gadhafi to desist from
further violence,” and “urge[d] the United Nations Security Council to
take such further action as may be necessary to protect civilians in Libya
21
35 Op. O.L.C. 20 (2011)
from attack, including the possible imposition of a no-fly zone over Liby-
an territory.” S. Res. No. 112-85, §§ 2, 3, 7 (as passed by Senate, Mar. 1,
2011). On March 12, the Council of the League of Arab States similarly
called on the UNSC “to take the necessary measures to impose immedi-
ately a no-fly zone on Libyan military aviation” and “to establish safe
areas in places exposed to shelling as a precautionary measure that allows
the protection of the Libyan people and foreign nationals residing in
Libya, while respecting the sovereignty and territorial integrity of neigh-
boring States.” League of Arab States, The Outcome of the Council of the
League of Arab States Meeting at the Ministerial Level in Its Extraordi-
nary Session on the Implications of the Current Events in Libya and the
Arab Position, Res. No. 7360, ¶ 1 (Mar. 12, 2011).
By March 17, 2011, Qadhafi’s forces were preparing to retake the city
of Benghazi. Pledging that his forces would begin an assault on the city
that night and show “no mercy and no pity” to those who would not give
up resistance, Qadhafi stated in a radio address: “We will come house by
house, room by room. It’s over. The issue has been decided.” Dan
Bilefsky & Mark Landler, Military Action Against Qaddafi Is Backed by
U.N., N.Y. Times, Mar. 18, 2011, at A1. Qadhafi, President Obama later
noted, “compared [his people] to rats, and threatened to go door to door
to inflict punishment. . . . We knew that if we . . . waited one more day,
Benghazi, a city nearly the size of Charlotte, could suffer a massacre that
would have reverberated across the region and stained the conscience of
the world.” Press Release, Office of the Press Secretary, The White
House, Remarks by the President in Address to the Nation on Libya
(Mar. 28, 2011) (“March 28, 2011 Address”), http://www.whitehouse.
gov/the-press-office/2011/03/28/remarks-president-address-nation-libya
(last visited ca. Apr. 2014).
Later the same day, the UNSC addressed the situation in Libya again
by adopting, by a vote of 10-0 (with five members abstaining), Resolution
1973, which imposed a no-fly zone and authorized the use of military
force to protect civilians. See S.C. Res. 1973, U.N. Doc. S/RES/1973
(Mar. 17, 2011); Press Release, Security Council, Security Council Ap-
proves ‘No-Fly Zone’ Over Libya, Authorizing ‘All Necessary Measures’
to Protect Civilians, by Vote of 10 in Favour with 5 Abstentions, U.N.
Press Release SC/10200 (Mar. 17, 2011). In this resolution, the UNSC
determined that the “situation” in Libya “continues to constitute a threat
22
Authority to Use Military Force in Libya
to international peace and security” and “demand[ed] the immediate
establishment of a cease-fire and a complete end to violence and all at-
tacks against, and abuses of, civilians.” S.C. Res. 1973. Resolution 1973
authorized member states, acting individually or through regional organi-
zations, “to take all necessary measures . . . to protect civilians and civil-
ian populated areas under threat of attack in the Libyan Arab Jamahiriya,
including Benghazi, while excluding a foreign occupation force of any
form on any part of Libyan territory.” Id. ¶ 4. The resolution also specifi-
cally authorized member states to enforce “a ban on all [unauthorized]
flights in the airspace of the Libyan Arab Jamahiriya in order to help
protect civilians” and to take “all measures commensurate to the specific
circumstances” to inspect vessels on the high seas suspected of violating
the arms embargo imposed on Libya by Resolution 1970. Id. ¶¶ 6–8, 13.
In remarks on March 18, 2011, President Obama stated that, to avoid
military intervention to enforce Resolution 1973, Qadhafi needed to:
implement an immediate ceasefire, including by ending all attacks on
civilians; halt his troops’ advance on Benghazi; pull his troops back
from three other cities; and establish water, electricity, and gas supplies
to all areas. Press Release, Office of the Press Secretary, The White
House, Remarks by the President on the Situation in Libya (Mar. 18,
2011) (“March 18, 2011 Remarks”), http://www.whitehouse.gov/the-
press-office/2011/03/18/remarks-president-situation-libya (last visited
ca. Apr. 2011). The President also identified several national interests
supporting United States involvement in the planned operations:
Now, here is why this matters to us. Left unchecked, we have every
reason to believe that Qaddafi would commit atrocities against his
people. Many thousands could die. A humanitarian crisis would en-
sue. The entire region could be destabilized, endangering many of
our allies and partners. The calls of the Libyan people for help would
go unanswered. The democratic values that we stand for would be
overrun. Moreover, the words of the international community would
be rendered hollow.
Id. President Obama further noted the broader context of the Libyan
uprising, describing it as “just one more chapter in the change that is
unfolding across the Middle East and North Africa.” Id.
23
35 Op. O.L.C. 20 (2011)
Despite a statement from Libya’s Foreign Minister that Libya would
honor the requested ceasefire, the Libyan government continued to con-
duct offensive operations, including attacks on civilians and civilian-
populated areas. See Press Release, Office of the Press Secretary, The
White House, Letter from the President Regarding Commencement of
Operations in Libya: Text of a Letter from the President to the Speaker of
the House of Representatives and the President Pro Tempore of the Sen-
ate (Mar. 21, 2011) (“March 21, 2011 Report to Congress”), http://www.
whitehouse.gov/the-press-office/2011/03/21/letter-president-regarding-
commencement-operations-libya (last visited ca. Apr. 2011). In response,
on March 19, 2011, the United States, with the support of a number of its
coalition partners, launched airstrikes against Libyan targets to enforce
Resolution 1973. Consistent with the reporting provisions of the War
Powers Resolution, 50 U.S.C. § 1543(a) (2006), President Obama provid-
ed a report to Congress less than forty-eight hours later, on March 21,
2011. The President explained:
At approximately 3:00 p.m. Eastern Daylight Time, on March 19,
2011, at my direction, U.S. military forces commenced operations to
assist an international effort authorized by the United Nations (U.N.)
Security Council and undertaken with the support of European allies
and Arab partners, to prevent a humanitarian catastrophe and address
the threat posed to international peace and security by the crisis in
Libya. As part of the multilateral response authorized under U.N.
Security Council Resolution 1973, U.S. military forces, under the
command of Commander, U.S. Africa Command, began a series of
strikes against air defense systems and military airfields for the pur-
poses of preparing a no-fly zone. These strikes will be limited in
their nature, duration, and scope. Their purpose is to support an in-
ternational coalition as it takes all necessary measures to enforce the
terms of U.N. Security Council Resolution 1973. These limited U.S.
actions will set the stage for further action by other coalition part-
ners.
March 21, 2011 Report to Congress. The report then described the back-
ground to the strikes, including UNSC Resolution 1973, the demand for a
ceasefire, and Qadhafi’s continued attacks.
24
Authority to Use Military Force in Libya
The March 21 report also identified the risks to regional and interna-
tional peace and security that, in the President’s judgment, had justified
military intervention:
Qadhafi’s continued attacks and threats against civilians and civilian
populated areas are of grave concern to neighboring Arab nations
and, as expressly stated in U.N. Security Council Resolution 1973,
constitute a threat to the region and to international peace and securi-
ty. His illegitimate use of force not only is causing the deaths of sub-
stantial numbers of civilians among his own people, but also is forc-
ing many others to flee to neighboring countries, thereby
destabilizing the peace and security of the region. Left unaddressed,
the growing instability in Libya could ignite wider instability in the
Middle East, with dangerous consequences to the national security
interests of the United States. Qadhafi’s defiance of the Arab
League, as well as the broader international community . . . repre-
sents a lawless challenge to the authority of the Security Council and
its efforts to preserve stability in the region. Qadhafi has forfeited
his responsibility to protect his own citizens and created a serious
need for immediate humanitarian assistance and protection, with any
delay only putting more civilians at risk.
Id. Emphasizing that “[t]he United States has not deployed ground forces
into Libya,” the President explained that “United States forces are con-
ducting a limited and well-defined mission in support of international
efforts to protect civilians and prevent a humanitarian disaster” and thus
had targeted only “the Qadhafi regime’s air defense systems, command
and control structures, and other capabilities of Qadhafi’s armed forces
used to attack civilians and civilian populated areas.” Id. The President
also indicated that “[w]e will seek a rapid, but responsible, transition of
operations to coalition, regional, or international organizations that are
postured to continue activities as may be necessary to realize the objec-
tives of U.N. Security Council Resolutions 1970 and 1973.” Id. As au-
thority for the military operations in Libya, President Obama invoked his
“constitutional authority to conduct U.S. foreign relations” and his author-
ity “as Commander in Chief and Chief Executive.” Id.
Before the initiation of military operations in Libya, White House and
other executive branch officials conducted multiple meetings and brief-
25
35 Op. O.L.C. 20 (2011)
ings on Libya with members of Congress and testified on the Admin-
istration’s policy at congressional hearings. See Press Release, Office of
the Press Secretary, Press Gaggle by Press Secretary Jay Carney,
3/14/2011 (Mar. 24, 2011), http://www.whitehouse.gov/the-press-office/
2011/03/24/press-gaggle-press-secretary-jay-carney-3242011 (last visit-
ed ca. Apr. 2011). President Obama invited Republican and Democratic
leaders of Congress to the White House for consultation on March 18,
2011 before launching United States military operations, see id., and
personally briefed members of Congress on the ongoing operations
on March 25, 2011. Press Release, Office of the Press Secretary,
Readout of the President’s Meeting with Members of Congress on Libya
(Mar. 25, 2011), http://www.whitehouse.gov/the-press-office/2011/03/
25/readout-presidents-meeting-members-congress-libya (last visited ca.
Apr. 2011). Senior executive branch officials are continuing to brief
Senators and members of Congress on U.S. operations and events in
Libya as they develop.
On March 28, 2011, President Obama addressed the nation regarding
the situation in Libya. The President stated that the coalition had succeed-
ed in averting a massacre in Libya and that the United States was now
transferring “the lead in enforcing the no-fly zone and protecting civilians
on the ground . . . to our allies and partners.” March 28, 2011 Address. In
future coalition operations in Libya, the President continued, “the United
States will play a supporting role—including intelligence, logistical
support, search and rescue assistance, and capabilities to jam regime
communications.” Id. The President also reiterated the national interests
supporting military action by the United States. “[G]iven the costs and
risks of intervention,” he explained, “we must always measure our inter-
ests against the need for action.” Id. But, “[i]n this particular country—
Libya—at this particular moment, we were faced with the prospect of
violence on a horrific scale,” and “[w]e had a unique ability to stop that
violence.” Id. Failure to prevent a slaughter would have disregarded
America’s “important strategic interest in preventing Qaddafi from over-
running those who oppose him”:
A massacre would have driven thousands of additional refugees
across Libya’s borders, putting enormous strains on the peaceful—
yet fragile—transitions in Egypt and Tunisia. The democratic im-
pulses that are dawning across the region would be eclipsed by the
26
Authority to Use Military Force in Libya
darkest form of dictatorship, as repressive leaders concluded that vi-
olence is the best strategy to cling to power. The writ of the United
Nations Security Council would have been shown to be little more
than empty words, crippling that institution’s future credibility to
uphold global peace and security. So while I will never minimize the
costs involved in military action, I am convinced that a failure to act
in Libya would have carried a far greater price for America.
Id. As of March 31, 2011, the United States had transferred responsibility
for all ongoing coalition military operations in Libya to the North Atlantic
Treaty Alliance (“NATO”).
II.
The President explained in his March 21, 2011 report to Congress that
the use of military force in Libya serves important U.S. interests in pre-
venting instability in the Middle East and preserving the credibility and
effectiveness of the United Nations Security Council. The President also
stated that he intended the anticipated United States military operations in
Libya to be limited in nature, scope, and duration. The goal of action by
the United States was to “set the stage” for further action by coalition
partners in implementing UNSC Resolution 1973, particularly through
destruction of Libyan military assets that could either threaten coalition
aircraft policing the UNSC-declared no-fly zone or engage in attacks on
civilians and civilian-populated areas. In addition, no U.S. ground forces
would be deployed, except possibly for any search and rescue missions,
and the risk of substantial casualties for U.S. forces would be low. As we
advised you prior to the commencement of military operations, we believe
that, under these circumstances, the President had constitutional authority,
as Commander in Chief and Chief Executive and pursuant to his foreign
affairs powers, to direct such limited military operations abroad, even
without prior specific congressional approval.
A.
Earlier opinions of this Office and other historical precedents establish
the framework for our analysis. As we explained in 1992, Attorneys
General and this Office “have concluded that the President has the power
to commit United States troops abroad,” as well as to “take military
27
35 Op. O.L.C. 20 (2011)
action,” “for the purpose of protecting important national interests,” even
without specific prior authorization from Congress. Authority to Use
United States Military Forces in Somalia, 16 Op. O.L.C. 6, 9 (1992)
(“Military Forces in Somalia”). This independent authority of the Presi-
dent, which exists at least insofar as Congress has not specifically re-
stricted it, see Deployment of United States Armed Forces Into Haiti, 18
Op. O.L.C. 173, 176 n.4, 178 (1994) (“Haiti Deployment I”), derives
from the President’s “unique responsibility,” as Commander in Chief and
Chief Executive, for “foreign and military affairs,” as well as national
security. Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993);
U.S. Const. art. II, § 1, cl. 1; id. § 2, cl. 2.
The Constitution, to be sure, divides authority over the military be-
tween the President and Congress, assigning to Congress the authority to
“declare War,” “raise and support Armies,” and “provide and maintain a
Navy,” as well as general authority over the appropriations on which any
military operation necessarily depends. U.S. Const. art. I, § 8, cls. 1, 11–
14. Yet, under “the historical gloss on the ‘executive Power’ vested in
Article II of the Constitution,” the President bears the “‘vast share of
responsibility for the conduct of our foreign relations,’” Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 414 (2003) (quoting Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)),
and accordingly holds “independent authority ‘in the areas of foreign
policy and national security.’” Id. at 429 (quoting Haig v. Agee, 453 U.S.
280, 291 (1981)); see also, e.g., Youngstown Sheet & Tube Co., 343 U.S.
at 635–36 n.2 (Jackson, J., concurring) (noting President’s constitutional
power to “act in external affairs without congressional authority”). More-
over, the President as Commander in Chief “superintend[s] the military,”
Loving v. United States, 517 U.S. 748, 772 (1996), and “is authorized to
direct the movements of the naval and military forces placed by law at his
command.” Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850); see also
Placing of United States Armed Forces Under United Nations Operation-
al or Tactical Control, 20 Op. O.L.C. 182, 184 (1996). The President also
holds “the implicit advantage . . . over the legislature under our constitu-
tional scheme in situations calling for immediate action,” given that
imminent national security threats and rapidly evolving military and
diplomatic circumstances may require a swift response by the United
States without the opportunity for congressional deliberation and action.
28
Authority to Use Military Force in Libya
Presidential Power to Use the Armed Forces Abroad Without Statutory
Authorization, 4A Op. O.L.C. 185, 187 (1980) (“Presidential Power”);
see also Haig, 453 U.S. at 292 (noting “‘the changeable and explosive
nature of contemporary international relations, and the fact that the Ex-
ecutive is immediately privy to information which cannot be swiftly
presented to, evaluated by, and acted upon by the legislature’”) (quoting
Zemel v. Rusk, 381 U.S. 1, 17 (1965). Accordingly, as Attorney General
(later Justice) Robert Jackson observed over half a century ago, “the
President’s authority has long been recognized as extending to the dis-
patch of armed forces outside of the United States, either on missions of
goodwill or rescue, or for the purpose of protecting American lives or
property or American interests.” Training of British Flying Students in the
United States, 40 Op. Att’y Gen. 58, 62 (1941).
This understanding of the President’s constitutional authority reflects
not only the express assignment of powers and responsibilities to the
President and Congress in the Constitution, but also, as noted, the “histor-
ical gloss” placed on the Constitution by two centuries of practice. Gara-
mendi, 539 U.S. at 414. “Our history,” this Office observed in 1980, “is
replete with instances of presidential uses of military force abroad in the
absence of prior congressional approval.” Presidential Power, 4A Op.
O.L.C. at 187; see generally Richard F. Grimmett, Cong. Research Serv.,
R41677, Instances of Use of United States Armed Forces Abroad, 1798–
2010 (2011) (“Grimmet”). Since then, instances of such presidential ini-
tiative have only multiplied, with Presidents ordering, to give just a few
examples, bombing in Libya (1986), an intervention in Panama (1989),
troop deployments to Somalia (1992), Bosnia (1995), and Haiti (twice,
1994 and 2004), air patrols and airstrikes in Bosnia (1993–1995), and a
bombing campaign in Yugoslavia (1999), without specific prior authoriz-
ing legislation. See Grimmett at 13–31. This historical practice is an
important indication of constitutional meaning, because it reflects the two
political branches’ practical understanding, developed since the founding
of the Republic, of their respective roles and responsibilities with respect
to national defense, and because “[m]atters intimately related to foreign
policy and national security are rarely proper subjects for judicial inter-
vention.” Haig, 453 U.S. at 292. In this context, the “pattern of executive
conduct, made under claim of right, extended over many decades and
engaged in by Presidents of both parties, ‘evidences the existence of
29
35 Op. O.L.C. 20 (2011)
broad constitutional power.’” Haiti Deployment I, 18 Op. O.L.C. at 178
(quoting Presidential Power, 4A Op. O.L.C. at 187); see also Proposed
Deployment of United States Armed Forces into Bosnia, 19 Op. O.L.C.
327, 330–31 (1995) (“Proposed Bosnia Deployment”) (noting that “[t]he
scope and limits” of Congress’s power to declare war “are not well de-
fined by constitutional text, case law, or statute,” but the relationship
between that power and the President’s authority as Commander in Chief
and Chief Executive has been instead “clarified by 200 years of prac-
tice”).
Indeed, Congress itself has implicitly recognized this presidential au-
thority. The War Powers Resolution (“WPR”), 50 U.S.C. §§ 1541–1548
(2006), a statute Congress described as intended “to fulfill the intent of
the framers of the Constitution of the United States,” id. § 1541(a), pro-
vides that, in the absence of a declaration of war, the President must
report to Congress within 48 hours of taking certain actions, including
introduction of U.S. forces “into hostilities or into situations where immi-
nent involvement in hostilities is clearly indicated by the circumstances.”
Id. § 1543(a). The Resolution further provides that the President generally
must terminate such use of force within 60 days (or 90 days for military
necessity) unless Congress extends this deadline, declares war, or “en-
act[s] a specific authorization.” Id. § 1544(b). As this Office has ex-
plained, although the WPR does not itself provide affirmative statutory
authority for military operations, see id. § 1547(d)(2), the Resolution’s
“structure . . . recognizes and presupposes the existence of unilateral
presidential authority to deploy armed forces” into hostilities or circum-
stances presenting an imminent risk of hostilities. Haiti Deployment I,
18 Op. O.L.C. at 175; see also Proposed Bosnia Deployment, 19 Op.
O.L.C. at 334. That structure—requiring a report within 48 hours after the
start of hostilities and their termination within 60 days after that—“makes
sense only if the President may introduce troops into hostilities or poten-
tial hostilities without prior authorization by the Congress.” Haiti De-
ployment I, 18 Op. O.L.C. at 175–76; see also Proposed Bosnia Deploy-
ment, 19 Op. O.L.C. at 334–35. 1
1 A policy statement in the WPR states that “[t]he constitutional powers of the Presi-
dent as Commander-in-Chief to introduce United States Armed Forces into hostilities, or
into situations where imminent involvement in hostilities is clearly indicated by the
circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statuto-
30
Authority to Use Military Force in Libya
We have acknowledged one possible constitutionally based limit on
this presidential authority to employ military force in defense of important
national interests—a planned military engagement that constitutes a “war”
within the meaning of the Declaration of War Clause may require prior
congressional authorization. See Proposed Bosnia Deployment, 19 Op.
O.L.C. at 331; Haiti Deployment I, 18 Op. O.L.C. at 177. But the histori-
cal practice of presidential military action without congressional approval
precludes any suggestion that Congress’s authority to declare war covers
every military engagement, however limited, that the President initiates.
In our view, determining whether a particular planned engagement consti-
tutes a “war” for constitutional purposes instead requires a fact-specific
assessment of the “anticipated nature, scope, and duration” of the planned
military operations. Haiti Deployment I, 18 Op. O.L.C. at 179. This stand-
ard generally will be satisfied only by prolonged and substantial military
engagements, typically involving exposure of U.S. military personnel to
significant risk over a substantial period. Again, Congress’s own key
enactment on the subject reflects this understanding. By allowing United
States involvement in hostilities to continue for 60 or 90 days, Congress
signaled in the WPR that it considers congressional authorization most
critical for “major, prolonged conflicts such as the wars in Vietnam and
Korea,” not more limited engagements. Id. at 176.
Applying this fact-specific analysis, we concluded in 1994 that a
planned deployment of up to 20,000 United States troops to Haiti to oust
military leaders and reinstall Haiti’s legitimate government was not a
“war” requiring advance congressional approval. Id. at 174 n.1, 178–79 &
ry authorization, or (3) a national emergency created by attack upon the United States, its
territories or possessions, or its armed forces.” 50 U.S.C. § 1541(c). But this policy
statement “is not to be viewed as limiting presidential action in any substantive manner.”
Presidential Power, 4A Op. O.L.C. at 190. The conference committee report accompany-
ing the WPR made clear that “[s]ubsequent sections of the [Resolution] are not dependent
upon the language of” the policy statement. H.R. Rep. No. 93-547, at 8 (1973). Moreover,
in a later, operative provision, the Resolution makes clear that nothing in it “is intended to
alter the constitutional authority . . . of the President.” 50 U.S.C. § 1547(d). As demon-
strated by U.S. military interventions in Somalia, Haiti, Bosnia, and Kosovo, among many
other examples, “the President’s power to deploy armed forces into situations of actual
or indicated hostilities is not restricted to the three categories specifically marked out by
the Resolution.” Proposed Bosnia Deployment, 19 Op. O.LC. at 335; see also Haiti
Deployment I, 18 Op. O.L.C. at 176 & n.3.
31
35 Op. O.L.C. 20 (2011)
n.10; see also Address to the Nation on Haiti, 30 Weekly Comp. Pres.
Doc. 1799 (Sept. 18, 1994); Maureen Taft-Morales & Clare Ribando
Seelke, Cong. Research Serv., RL32294, Haiti: Developments and U.S.
Policy Since 1991 and Current Congressional Concerns 4 (2008). “In
deciding whether prior Congressional authorization for the Haitian de-
ployment was constitutionally necessary,” we observed, “the President
was entitled to take into account the anticipated nature, scope, and dura-
tion of the planned deployment, and in particular the limited antecedent
risk that United States forces would encounter significant armed re-
sistance or suffer or inflict substantial casualties as a result of the de-
ployment.” Haiti Deployment I, 18 Op. O.L.C. at 179. Similarly, a year
later we concluded that a proposed deployment of approximately 20,000
ground troops to enforce a peace agreement in Bosnia and Herzegovina
also was not a “war,” even though this deployment involved some “risk
that the United States [would] incur (and inflict) casualties.” Proposed
Bosnia Deployment, 19 Op. O.L.C. at 333. For more than two years pre-
ceding this deployment, the United States had undertaken air operations
over Bosnia to enforce a UNSC-declared “no-fly zone,” protect United
Nations peacekeeping forces, and secure “safe areas” for civilians, includ-
ing one two-week operation in which NATO attacked hundreds of targets
and the United States alone flew over 2300 sorties—all based on the
President’s “constitutional authority to conduct the foreign relations of the
United States and as Commander in Chief and Chief Executive,” without
a declaration of war or other specific prior approval from Congress. Letter
to Congressional Leaders Reporting on the Deployment of United States
Aircraft to Bosnia-Herzegovina (Sept. 1, 1995), 2 Pub. Papers of Pres.
William J. Clinton 1279, 1280 (1995); see also, e.g., Letter to Congres-
sional Leaders on Bosnia, 30 Weekly Comp. Pres. Doc. 2431, 2431 (Nov.
22, 1994); Letter to Congressional Leaders on Bosnia-Herzegovina, 30
Weekly Comp. Pres. Doc. 1699, 1700 (Aug. 22, 1994); Letter to Congres-
sional Leaders on Protection of United Nations Personnel in Bosnia-
Herzegovina, 30 Weekly Comp. Pres. Doc. 793, 793 (Apr. 12, 1994);
Letter to Congressional Leaders Reporting on NATO Action in Bosnia, 30
Weekly Comp. Pres. Doc. 406, 406 (Mar. 1, 1994); Letter to Congres-
sional Leaders on the Conflict in the Former Yugoslavia, 30 Weekly
Comp. Pres. Doc. 324, 325 (Feb. 17, 1994); Letter to Congressional
Leaders Reporting on the No-Fly Zone Over Bosnia, 29 Weekly Comp.
32
Authority to Use Military Force in Libya
Pres. Doc. 586, 586 (Apr. 13, 1993); Proposed Bosnia Deployment, 19
Op. O.L.C. at 328–29; Deliberate Force: A Case Study in Effective Air
Campaigning 334, 341–44 (Col. Robert C. Owen ed., 2000), http://purl.
access.gpo.gov/GPO/LPS20446 (last visited ca. Apr. 2011). This Office
acknowledged that “deployment of 20,000 troops on the ground is an
essentially different, and more problematic, type of intervention,” than
air or naval operations because of the increased risk of United States
casualties and the far greater difficulty of withdrawing United States
ground forces. But we nonetheless concluded that the anticipated risks
were not sufficient to make the deployment a “‘war’ in any sense of the
word.” Proposed Bosnia Deployment, 19 Op. O.L.C. at 333–34 (emphasis
in original).
B.
Under the framework of these precedents, the President’s legal authori-
ty to direct military force in Libya turns on two questions: first, whether
United States operations in Libya would serve sufficiently important
national interests to permit the President’s action as Commander in Chief
and Chief Executive and pursuant to his authority to conduct U.S. foreign
relations; and second, whether the military operations that the President
anticipated ordering would be sufficiently extensive in “nature, scope, and
duration” to constitute a “war” requiring prior specific congressional
approval under the Declaration of War Clause.
In prior opinions, this Office has identified a variety of national inter-
ests that, alone or in combination, may justify use of military force by the
President. In 2004, for example, we found adequate legal authority for the
deployment of U.S. forces to Haiti based on national interests in protect-
ing the lives and property of Americans in the country, preserving “re-
gional stability,” and maintaining the credibility of United Nations Securi-
ty Council mandates. Deployment of United States Armed Forces to Haiti,
28 Op. O.L.C. 30, 32–33 (2004) (“Haiti Deployment II”). In 1995, we
similarly concluded that the President’s authority to deploy approximately
20,000 ground troops to Bosnia, for purposes of enforcing a peace agree-
ment ending the civil war there, rested on national interests in completing
a “pattern of inter-allied cooperation and assistance” established by prior
U.S. participation in NATO air and naval support for peacekeeping ef-
forts, “preserving peace in the region and forestalling the threat of a wider
33
35 Op. O.L.C. 20 (2011)
conflict,” and maintaining the credibility of the UNSC. Proposed Bosnia
Deployment, 19 Op. O.L.C. at 332–33. And in 1992, we explained the
President’s authority to deploy troops in Somalia in terms of national
interests in providing security for American civilians and military person-
nel involved in UNSC-supported humanitarian relief efforts and (once
again) enforcing UNSC mandates. Military Forces in Somalia, 16 Op.
O.L.C. at 10–12. 2
In our view, the combination of at least two national interests that the
President reasonably determined were at stake here—preserving regional
stability and supporting the UNSC’s credibility and effectiveness—
provided a sufficient basis for the President’s exercise of his constitution-
al authority to order the use of military force. 3 First, the United States has
a strong national security and foreign policy interest in security and stabil-
ity in the Middle East that was threatened by Qadhafi’s actions in Libya.
As noted, we recognized similar regional stability interests as justifica-
tions for presidential military actions in Haiti and Bosnia. With respect to
Haiti, we found “an obvious interest in maintaining peace and stability,”
“[g]iven the proximity of Haiti to the United States,” and particularly
considering that “past instances of unrest in Haiti have led to the mass
emigration of refugees attempting to reach the United States.” Haiti
Deployment II, 28 Op. O.L.C. at 32–33. In the case of Bosnia, we noted
(quoting prior statements by President Clinton justifying military action)
the longstanding commitment of the United States to the “‘principle that
the security and stability of Europe is of fundamental interest to the Unit-
ed States,’” and we identified, as justification for the military action, the
2 As these examples make clear, defense of the United States to repel a direct and im-
mediate military attack is by no means the only basis on which the President may use
military force without congressional authorization. Accordingly, the absence of an
immediate self-defense interest does not mean that the President lacked authority for the
military operations in Libya.
3 Although President Obama has expressed opposition to Qadhafi’s continued leader-
ship of Libya, we understand that regime change is not an objective of the coalition’s
military operations. See March 28, 2011 Address (“Of course, there is no question that
Libya—and the world—would be better off with Qaddafi out of power. I . . . will actively
pursue [that goal] through non-military means. But broadening our military mission to
include regime change would be a mistake.”). We therefore do not consider any national
interests relating to regime change in assessing the President’s legal authority to order
military operations in Libya.
34
Authority to Use Military Force in Libya
President’s determination that “[i]f the war in the former Yugoslavia
resumes, ‘there is a very real risk that it could spread beyond Bosnia, and
involve Europe’s new democracies as well as our NATO allies.’” Pro-
posed Bosnia Deployment, 19 Op. O.L.C. at 333. In addition, in another
important precedent, President Clinton justified extensive airstrikes in the
Federal Republic of Yugoslavia (“FRY”) in 1999—military action later
ratified by Congress but initially conducted without specific authorization,
see Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327
(2000)—based on concerns about the threat to regional security created by
that government’s repressive treatment of the ethnic Albanian population
in Kosovo. “The FRY government’s violence,” President Clinton ex-
plained, “creates a conflict with no natural boundaries, pushing refugees
across borders and potentially drawing in neighboring countries. The
Kosovo region is a tinderbox that could ignite a wider European war with
dangerous consequences to the United States.” Letter to Congressional
Leaders Reporting on Airstrikes Against Serbian Targets in the Federal
Republic of Yugoslavia ( Serbia and Montenegro), 35 Weekly Comp. Pres.
Doc. 527, 527 (Mar. 26, 1999).
As his statements make clear, President Obama determined in this case that
the Libyan government’s actions posed similar risks to regional peace and
security. Much as violence in Bosnia and Kosovo in the 1990s risked creating
large refugee movements, destabilizing neighboring countries, and inviting
wider conflict, here the Libyan government’s “illegitimate use of force . . .
[was] forcing many [civilians] to flee to neighboring countries, thereby desta-
bilizing the peace and security of the region.” March 21, 2011 Report to
Congress. “Left unaddressed,” the President noted in his report to Congress,
“the growing instability in Libya could ignite wider instability in the Middle
East, with dangerous consequences to the national security interests of the
United States.” Id. Without outside intervention, Libya’s civilian population
faced a “humanitarian catastrophe,” id.; as the President put it on another
occasion, “innocent people” in Libya were “being brutalized” and Qadhafi
“threaten[ed] a bloodbath that could destabilize an entire region.” Press Re-
lease, Office of the Press Secretary, The White House, Weekly Address:
President Obama Says the Mission in Libya is Succeeding (Mar. 26, 2011),
http://www.whitehouse.gov/the-press-office/2011/03/26/weekly-address-
president-obama-says-mission-libya-succeeding (last visited ca. Apr. 2011).
The risk of regional destabilization in this case was also recognized by the
35
35 Op. O.L.C. 20 (2011)
UNSC, which determined in Resolution 1973 that the “situation” in Libya
“constitute[d] a threat to international peace and security.” S.C. Res. 1973. As
this Office has previously observed, “[t]he President is entitled to rely on”
such UNSC findings “in making his determination that the interests of the
United States justify providing the military assistance that [the UNSC resolu-
tion] calls for.” Military Forces in Somalia, 16 Op. O.L.C. at 12. 4
Qadhafi’s actions not only endangered regional stability by increasing
refugee flows and creating a humanitarian crisis, but, if unchecked, also
could have encouraged the repression of other democratic uprisings that
were part of a larger movement in the Middle East, thereby further un-
dermining United States foreign policy goals in the region. Against the
background of widespread popular unrest in the region, events in Libya
formed “just one more chapter in the change that is unfolding across the
Middle East and North Africa.” March 18, 2011 Remarks. Qadhafi’s
campaign of violence against his own country’s citizens thus might have
set an example for others in the region, causing “[t]he democratic im-
pulses that are dawning across the region [to] be eclipsed by the darkest
form of dictatorship, as repressive leaders concluded that violence is the
best strategy to cling to power.” March 28, 2011 Address. At a minimum,
a massacre in Libya could have imperiled transitions to democratic
government underway in neighboring Egypt and Tunisia by driving
“thousands of additional refugees across Libya’s borders.” Id. Based on
these factors, we believe the President could reasonably find a significant
national security interest in preventing Libyan instability from spreading
elsewhere in this critical region.
The second important national interest implicated here, which rein-
forces the first, is the longstanding U.S. commitment to maintaining the
credibility of the United Nations Security Council and the effectiveness
of its actions to promote international peace and security. Since at least
the Korean War, the United States government has recognized that
“‘[t]he continued existence of the United Nations as an effective interna-
4 We note, however, that, at least for purposes of domestic law, a Security Council
resolution is “not required as a precondition for Presidential action.” Military Forces in
Somalia, 16 Op. O.L.C. at 7. Rather, as we explained in 2004, “in exercising his authority
as Commander in Chief and Chief Executive, the President [may] choose to take” the
UNSC resolution into account “in evaluating the foreign policy and national security
interests of the United States that are at stake.” Haiti Deployment II, 28 Op. O.L.C. at 33.
36
Authority to Use Military Force in Libya
tional organization is a paramount United States interest.’” Military
Forces in Somalia, 16 Op. O.L.C. at 11 (quoting Authority of the Presi-
dent to Repel the Attack in Korea, 23 Dep’t of State Bull. 173, 177
(1950)). Accordingly, although of course the President is not required to
direct the use of military force simply because the UNSC has authorized
it, this Office has recognized that “‘maintaining the credibility of United
Nations Security Council decisions, protecting the security of United
Nations and related relief efforts, and ensuring the effectiveness of Unit-
ed Nations peacekeeping operations can be considered a vital national
interest’” on which the President may rely in determining that U.S.
interests justify the use of military force. Proposed Bosnia Deployment,
19 Op. O.L.C. at 333 (quoting Military Forces in Somalia, 16 Op. O.L.C.
at 11). Here, the UNSC’s credibility and effectiveness as an instrument
of global peace and stability were at stake in Libya once the UNSC took
action to impose a no-fly zone and ensure the safety of civilians—
particularly after Qadhafi’s forces ignored the UNSC’s call for a cease
fire and for the cessation of attacks on civilians. As President Obama
noted, without military action to stop Qadhafi’s repression, “[t]he writ of
the United Nations Security Council would have been shown to be little
more than empty words, crippling that institution’s future credibility to
uphold global peace and security.” March 28, 2011 Address; see also
March 21, 2011 Report to Congress (“Qadhafi’s defiance of the Arab
League, as well as the broader international community . . . represents a
lawless challenge to the authority of the Security Council and its efforts
to preserve stability in the region.”). We think the President could legiti-
mately find that military action by the United States to assist the interna-
tional coalition in giving effect to UNSC Resolution 1973 was needed to
secure “a substantial national foreign policy objective.” Military Forces
in Somalia, 16 Op. O.L.C. at 12.
We conclude, therefore, that the use of military force in Libya was sup-
ported by sufficiently important national interests to fall within the Presi-
dent’s constitutional power. At the same time, turning to the second
element of the analysis, we do not believe that anticipated United States
operations in Libya amounted to a “war” in the constitutional sense neces-
sitating congressional approval under the Declaration of War Clause. This
inquiry, as noted, is highly fact-specific and turns on no single factor. See
Proposed Bosnia Deployment, 19 Op. O.L.C. at 334 (reaching conclusion
37
35 Op. O.L.C. 20 (2011)
based on specific “circumstances”); Haiti Deployment I, 18 Op. O.L.C. at
178 (same). Here, considering all the relevant circumstances, we believe
applicable historical precedents demonstrate that the limited military
operations the President anticipated directing were not a “war” for consti-
tutional purposes.
As in the case of the no-fly zone patrols and periodic airstrikes in Bos-
nia before the deployment of ground troops in 1995 and the NATO bomb-
ing campaign in connection with the Kosovo conflict in 1999—two mili-
tary campaigns initiated without a prior declaration of war or other
specific congressional authorization—President Obama determined that
the use of force in Libya by the United States would be limited to air-
strikes and associated support missions; the President made clear that
“[t]he United States is not going to deploy ground troops in Libya.”
March 18, 2011 Remarks. The planned operations thus avoided the diffi-
culties of withdrawal and risks of escalation that may attend commitment
of ground forces—two factors that this Office has identified as “arguably”
indicating “a greater need for approval [from Congress] at the outset,” to
avoid creating a situation in which “Congress may be confronted with
circumstances in which the exercise of its power to declare war is effec-
tively foreclosed.” Proposed Bosnia Deployment, 19 Op. O.L.C. at 333.
Furthermore, also as in prior operations conducted without a declaration
of war or other specific authorizing legislation, the anticipated operations
here served a “limited mission” and did not “aim at the conquest or occu-
pation of territory.” Id. at 332. President Obama directed United States
forces to “conduct[] a limited and well-defined mission in support of
international efforts to protect civilians and prevent a humanitarian disas-
ter”; American airstrikes accordingly were to be “limited in their nature,
duration, and scope.” March 21, 2011 Report to Congress. As the Presi-
dent explained, “we are not going to use force to go beyond [this] well-
defined goal.” March 18, 2011 Remarks. And although it might not be
true here that “the risk of sustained military conflict was negligible,” the
anticipated operations also did not involve a “preparatory bombardment”
in anticipation of a ground invasion—a form of military operation we
distinguished from the deployment (without preparatory bombing) of
20,000 U.S. troops to Haiti in concluding that the latter operation did not
require advance congressional approval. Haiti Deployment I, 18 Op.
O.L.C. at 176, 179. Considering the historical practice of even intensive
38
Authority to Use Military Force in Libya
military action—such as the 17-day-long 1995 campaign of NATO air-
strikes in Bosnia and some two months of bombing in Yugoslavia in
1999—without specific prior congressional approval, as well as the lim-
ited means, objectives, and intended duration of the anticipated operations
in Libya, we do not think the “anticipated nature, scope, and duration” of
the use of force by the United States in Libya rose to the level of a “war”
in the constitutional sense, requiring the President to seek a declaration of
war or other prior authorization from Congress.
Accordingly, we conclude that President Obama could rely on his con-
stitutional power to safeguard the national interest by directing the antici-
pated military operations in Libya—which were limited in their nature,
scope, and duration—without prior congressional authorization.
CAROLINE D. KRASS
Principal Deputy Assistant Attorney General
Office of Legal Counsel
39