And Libya goes on...

[jmm99]

Two reports from the CRS (Congressional Research Service):

No-Fly Zones: Strategic, Operational, and Legal Considerations for Congress

Summary

The ongoing uprising in Libya against the government of Muammar al Qadhafi has been the subject of ongoing domestic and international debate about potential international military intervention, including the proposed establishment of a no-fly zone over Libya. Congress may wish to consider issues surrounding the strategy, international authorization, congressional authorization, operations, and costs of establishing and maintaining no-fly zones.

The military strategy designed to support the grand strategy, it has been suggested, might be based on these considerations: the operational-level military objectives that need to be achieved, to support the overall grand strategy; and the extent to which a no-fly zone — as one set of ways and means — helps achieve those objectives.

Practitioners and observers have debated what constitutes international “authorization” for the establishment of a no-fly zone. Given the paucity of relevant precedents, and the dissimilarities among them, there may not exist a single, clear, agreed model. The concept of authorization is typically considered to be linked to the ideas of both “legality” and “legitimacy” — the three concepts overlap but are all distinct. The precise meaning of each of the terms is still debated. Express authorization from the U.N. Security Council provides the clearest legal basis for imposing a no-fly zone.

In addition to international authorization, debates have addressed the question of congressional authorization—whether and when there is a need for congressional approval based on the War Powers Resolution for a proposed no-fly zone. The question of whether and how congressional authorization is sought for a proposed operation could have an impact on congressional support — including policy, funding, and outreach to the American people — for the operation. Since the War Powers Resolution gives the President the authority to launch U.S. military actions prior to receiving an authorization from Congress for 60-90 days, it is possible that the President could direct U.S. Armed Forces to take or support military actions in accordance with U.N. Security Council resolutions, or in support of NATO operations, and then seek statutory authority for such actions from Congress.

No-fly zone operations can conceivably take a number of different forms, and can themselves vary a great deal over time. Key considerations include, but are not limited to, the following factors: the nature, density, quantity, and quality of adversary air assets; geography; the availability of “friendly” assets; the adversary’s military capabilities and responses; the U.S. military’s concept of operations, and the rules of engagement.

The costs of establishing and maintaining a no-fly zone are likely to vary widely based on several key parameters. They could be the specific military tasks that a given no-fly zone operation calls for, the geography of the adversary’s country, the duration of the no-fly zone, the extent to which the U.S. is joined by international partners in the effort, and the extent of “mission creep” — how, if at all, the operation expands to include a broader array of activities designed to achieve the same military and strategic objectives.

Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications

Summary

From the Washington Administration to the present, Congress and the President have enacted 11 separate formal declarations of war against foreign nations in five different wars. Each declaration has been preceded by a presidential request either in writing or in person before a joint session of Congress. The reasons cited in justification for the requests have included armed attacks on United States territory or its citizens and threats to United States rights or interests as a sovereign nation.

Congress and the President have also enacted authorizations for the use of force rather than formal declarations of war. Such measures have generally authorized the use of force against either a named country or unnamed hostile nations in a given region. In most cases, the President has requested the authority, but Congress has sometimes given the President less than what he asked for. Not all authorizations for the use of force have resulted in actual combat. Both declarations and authorizations require the signature of the President in order to become law.

In contrast to an authorization, a declaration of war in itself creates a state of war under international law and legitimates the killing of enemy combatants, the seizure of enemy property, and the apprehension of enemy aliens. While a formal declaration was once deemed a necessary legal prerequisite to war and was thought to terminate diplomatic and commercial relations and most treaties between the combatants, declarations have fallen into disuse since World War II. The laws of war, such as the Hague and Geneva Conventions, apply to circumstances of armed conflict whether or not a formal declaration or authorization was issued.

With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc. In contrast, no standby authorities appear to be triggered automatically by an authorization for the use of force, although the executive branch has argued, with varying success, that the authorization to use force in response to the terrorist attacks of 2001 provided a statutory exception to certain statutory prohibitions.

Most statutory standby authorities do not expressly require a declaration of war to be actualized but can be triggered by a declaration of national emergency or simply by the existence of a state of war; however, courts have sometimes construed the word “war” in a statute as implying a formal declaration, leading Congress to enact clarifying amendments in two cases. Declarations of war and authorizations for the use of force waive the time limitations otherwise applicable to the use of force imposed by the War Powers Resolution.

This report provides historical background on the enactment of declarations of war and authorizations for the use of force and analyzes their legal effects under international and domestic law. It also sets forth their texts in two appendices. The report includes an extensive listing and summary of statutes that are triggered by a declaration of war, a declaration of national emergency, and/or the existence of a state of war. The report concludes with a summary of the congressional procedures applicable to the enactment of a declaration of war or authorization for the use of force and to measures under the War Powers Resolution. The report will be updated as circumstances warrant.

cont in pt 2

[jmm99]

Also from Jack Goldsmith (who headed OLC during part of the GWB administration), The Legal Reason Why the Obama Administration Won’t Call the Libya Action “War” - which primarily discusses two OLC opinions made during the Clinton administration (for Haiti and for Bosnia - no OLC opinion on the legality of the Kosovo intervention exists on the public record).

Jack makes the following two points:

I think the Obama administration embraced these [Dellinger] arguments because, like the Clinton administration, it did not want to rely on broader theories of presidential power. Going this route also avoids having to embrace (or explain away) the awkward post-Dellinger, Clinton-era unilateral intervention in Kosovo, which involved eleven weeks of intense aerial bombardment. Nonetheless, using the Dellinger rationale in Libya is awkward for at least two reasons.

First, the Haiti and Bosnia interventions were different. Dellinger gave considerable weight to the fact that Haiti and Bosnia were consensual interventions. The Libya intervention is not. Dellinger suggested in the Haiti opinion that “the limited antecedent risk that United States forces would encounter significant armed resistance or suffer or inflict substantial casualties as a result of the deployment” (JG emphasis) weighed against the intervention being a war that required congressional authorization. In Libya, both significant armed resistance and substantial casualties from a week of heavy bombing could have been anticipated. Dellinger also said in the Haiti opinion that “other aspects of the planned deployment, including the fact that it would not involve extreme use of force, as for example preparatory bombardment [JG emphasis], were also relevant to the judgment that it was not a ‘war.’” Extreme use of force and preparatory bombardment are what Libya is about. Cutting in the other direction, both the Bosnia and Haiti deployments involved (or were anticipated to involve) a lot of U.S. troops on the ground – troops that are harder to disengage from fighting than mere aerial bombardments. Nonetheless, those troops were being sent there as part of consensual peacekeeping or stability missions, not as a coercive force. For these reasons, it seems to me that characterizing the Libya intervention as not “war” requires an expansion, possibly significant, of the Dellinger rationale for unilateral presidential power.

Second, the Dellinger rationale becomes less persuasive with each passing day as the duration of the conflict grows longer and the casualties and physical damage pile up. It also starts at some point to look like Kosovo, the precedent the administration apparently wants to avoid.

It is impossible for outsiders to know how much the “no war” rhetoric and the imperative for the United States to withdraw soon from active hostilities are being driven by domestic and international politics, and how much are being driven by the Justice Department’s (or the White House’s) skittishness about indulging a broader theory of presidential power. The more the administration keeps insisting that the Libya intervention is “not war” in the face of growing domestic skepticism about the claim, the more I think legal considerations are driving the rhetoric.

Please note that all of these are "political questions". As such, it is highy unlikely that SCOTUS will address them directly.

Regards

Mike

[Surferbeetle]

Please note that all of these are "political questions". As such, it is highy unlikely that SCOTUS will address them directly.

Regards

Mike

Mike,

As always I greatly appreciate these insights and lessons.

Cheers,

Steve

[tequila]

Despite Libyan claims, little evidence of civilian casualties - A nasty part of me wants this regime to survive, if only because propaganda this inept is so rarely found nowadays.

[Presley Cannady]

This forum would clearly be beyond politically incorrect if it was German forum. I won't elaborate on this, for any appropriate description would only deteriorate this thread.

It would be an interesting thread in its own right, probably best in "The Coalition Speaks." For what it's worth, I imagine Germany's last two military crescendos means she gets as much a pass where it concerns the common defense as Japan.

[JMA]

Despite Libyan claims, little evidence of civilian casualties - A nasty part of me wants this regime to survive, if only because propaganda this inept is so rarely found nowadays.

Yea, this indicates are that the word precision has been put back into the use of these weapons. Excellent work all round. This must surely lead to greater confidence in the ability stand off (no boots on the ground) and if not bring a rogue regime down at least cripple its ability to wage war against its own people or others. This is the big plus to come out of this exercise.

The Libyan claims of civilian casualties are merely playing to the emotions of the anti-US and anti-West lobby who dutifully take up the refrain. Still can't think of why Gaddafi's TV and radio have not been jammed. Still can't think why radio and TV FREE LIBYA are not broadcasting from a ship off the coast. The value of Psyops seems still to be vastly underrated.

[JMA]

IMHO this is not a reasonable course of action nor is it recommended at this time.

Your suggested COA does not address reasonable legal and moral restrictions regarding the prohibition of assassination of heads of state.

Your personal opinion.

Yes the US has put itself out of play because of the law (which I don't know much about the exact wording) but that does not extend to all nations (for this read those that still can take out a criminal head of state.)

You can of course be forgiven for seeing everything through the single lens of US perspective but perhaps one day the scales will lift and you will begin to see a big world of vastly differing perspectives out there.

Lets monitor the body counts in Libya and Ivory Coast (just these two as we have open threads on them here) and see what the trade off has been between some pretty stupid US law and the lives and livelihoods of people. That will be painful I know and no doubt the emotional knee-jerk responses will fly.

You see I place the lives of humans way above the discussions around why the US should or shouldn't get involved with humanitarian intervention. I get outraged at the obvious inhumanity of what is increasingly coming out of the US. (this is why I snip your next two IMHO nonsense paragraphs)

I recognize your right to an opinion and position and do not think or imply otherwise. I too have an opinion and will not be deterred in expressing it either.

That is as it should be... and lets hope that it stays that way around here.

Between these two positions there is ample room for both of us to discuss a variety of events and experiences, and I look forward to discussing additional ones with you.

Fine with me.

I am concerned that the publicly stated objectives for the NFZ are based upon a simple and static viewpoint while the actual problem is a very complex one, which is also quite dynamic and not constrained by arbitrary national borders.

Focus upon Libya. If (now) NATO is able to enforce the NFZ and protect the civilians from Gaddafi's forces then it will be mission accomplished.

You don't write like someone who has served in the military (so hopefully not sounding condescending) I suggest you take cognisance of the first principle or war (at least the Brit one) which is "Selection and Maintenance of the Aim". The aim must be given to military commanders and they must be given the tools to achieve that aim. Once the politicians start to fudge the aim daily/weekly/monthly it makes it all but impossible for military commanders.

So yes these issues can be discussed for as long as you have time and the number of cups of coffee those you want to discuss this stuff can manage... but eventually you have to cut to the chase, establish the aim and let the military get on with it.

I tried some days ago in post #380 to ask the question:

When the regime collapses there is no doubt that there will be excesses by the rebels and victims of the regime unless there is a mechanism to establish effective policing in the country. What is the plan here? Is there a plan? Who will be involved in such a plan? Who should be involved in such a plan?

It is clear there is no plan. In fact it is equally clear that the State Department have absolutely no idea of what's happening on the ground (nor probably the CIA).

What do you think the plan should be for when either Gaddafi folds or the situation reaches a Libyan East/West stale mate?

[JMA]

My point is you cannot -- or certainly should not -- ever divorce the two. Such thinking, that divorce, effectively puts the contributing nations and the Libyans (both or all sides /parties) in never-never land...

I agree with that and that is why I asked the question in post #380 "What's next?"

That flawed thinking has occurred all too frequently in these interventions. Plain old simple backward planning could fix most of that.My reluctance to support such operations is induced by participation in a couple and observation of many more all of which show that the military (generic / worldwide) has learned, or more correctly, instilled little. That and the seemingly almost mandatory vacillation of all politicians...

I understand your frustrations from personal experience and personal observation. But I as stated elsewhere can't accept a refusal to intervene on humanitarian grounds based on implementation problems. The US military has had enough experience in these matters to have lined up all the contingency plans (including those covering their own politicians incompetence) for all possible scenarios. All politicians are broadly incompetent especially when it comes to small wars and interventions but with large powerful countries the damage they can do is in proportion to their size and the stupidity of their politicians.

Noble intent is laudable and desirable; at least marginal competence, consistency and will are desirable and IMO more important. The first will be wasted in the absence of the latter. I believe the Hippocratic dictum of "First, do no harm..." applies.

As I have alluded to above the as time passes the military has few options to pass the buck to the politicians. The military should be learning too.

The usual error is indeed to decide to intervene then direct a 'strategy' or plan be devised. What should happen is that nations who espouse such an interventionist policy should develop a strategy on intervening, insure it is resource and effective and then wait for a need -- but that requires more foresight than most are willing to support.Yes. That is based on the dual premise that failure in not achieving aims and thus potentially doing more harm than good to the affected populace also induces in others a perception of weakness or incompetence on the part of the intervening nation or force that frequently leads to more such 'crises.'Sadly, that does seem to be always correct... I got the context but the broader problem is as you say...

This is an important point. I thought where were forces called "Rapid response (something)" under NATO which could be used fior just such a purpose. (I am assuming here that the command and control issues have all been sorted out for such operations at NATO level?)

Just as one would set up standby peace keeping forces from 2nd tier (and less resourced) militaries such as Canada, Australia, New Zealand, Italy, India, Pakistan and the rest there should be a peace-making force from the likes of the US, UK and France - with some Muslim input on stand-by for boots on the ground operations such as from Algeria, Egypt, Malaysia and Indonesia.

This UN business is a sheer waste of time and it and the veto power at the UNSC is probably the largest cause or contributing factor to the loss of life in the last few hundred years. Totally ineffective and useless.

So given the circumstances I understand the frustrations you and many other have experienced from having tried to soldier under these sub-optimal circumstances. One thinks of that poor man Lt-General Roméo Dallaire in Rwanda as an extreme example.

Then of course we get to RoE which seems to be at the heart of the problems in Afghanistan. This gives more than a mere perception of weakness or incompetence it must be said.

The bottom line is that if the US can't get it right then there are few others who possibly could.

[Ken White]

You're right on most of these and that is -- indeed -- the problem...

I agree with that and that is why I asked the question in post #380 "What's next?"

That you and I ask it is nice. That a lot of politicians in a lot of nations and a lot of serving military people asked it as they did (and are still doing...) is far better and more important. The questions remain:

Why did the decision makers not address that or listen to their advisors prior to commitment?

Why is this a recurring problem involving most nations at one time or another?

But I as stated elsewhere can't accept a refusal to intervene on humanitarian grounds based on implementation problems. The US military has had enough experience in these matters to have lined up all the contingency plans (including those covering their own politicians incompetence) for all possible scenarios. All politicians are broadly incompetent especially when it comes to small wars and interventions but with large powerful countries the damage they can do is in proportion to their size and the stupidity of their politicians.

In order, I don't agree because I'm convinced that all our (the world's) experience points to a rather common lack of success in the efforts -- I suggest we need to rethink 'humanitarian' intervention totally.

You'd think. Alas, re the US military, countering anticipated incompetence and politicians world and US experience to date shows that human fallibility and egos intrude in both the political and military arenas and thus the significant potential for flaws stays with us, year after year, administration after administration. The same phenomenon can be seen in all nations, all to my knowledge, that intervene anywhere for whatever reason. Same errors, over and over...

It is possible to do what you suggest but it would take a major cultural shift (and that worldwide, not just US specific) that I do not foresee.

As I have alluded to above the as time passes the military has few options to pass the buck to the politicians. The military should be learning too.

I agree but must say that it obviously does not and possibly, even probably, will not...

This is an important point...Algeria, Egypt, Malaysia and Indonesia.

Again, you and I agree -- what are we going to do about those stupid nations that won't listen to us???

This UN business...Totally ineffective and useless.

True.

...One thinks of that poor man Lt-General Roméo Dallaire in Rwanda as an extreme example.

Agree in part but must say I'm not a Dallaire fan nor am I sympathetic...

Then of course we get to RoE which seems to be at the heart of the problems in Afghanistan. This gives more than a mere perception of weakness or incompetence it must be said.

True. The ROE are not solely to blame, our marginal training and deeply flawed personnel policies as well as political factors intrude. Combined, they equate to tying hands and literally forcing weakness and less than stellar competence...

The bottom line is that if the US can't get it right then there are few others who possibly could.

That is scarily correct -- and that IS the problem because we, the world in general as well as the US, apparently -- obviously -- cannot and will not get it right. My belief is that we have not a political, military or planning problem in relation to interventions, humanitarian or otherwise but rather a significant and constant human foible problem that must be considered in designing a different approach for the future.

I doubt it'll be an easy fix...

[Bob's World]

This is not peace keeping, peace making, or war.

How about "Violence Mitigation"? The whole idea should be to encourage both sides to shift to less violent tactics and to get them to a mediated resolution of their own design.

Sometimes the big guy needs to step in, crack some heads together, and make people work it out. He can't solve it for them, and he shouldn't help one side win either. Just set some parameters and let them work it out.

[AdamG]

The pervading feature of the conflict in Libya has been the ineptitude of the main rebel force. Time and again they have failed to take advantage of weaknesses among Muammar Gaddafi's troops and, just as frequently, they have fled in the face of fire.

The most glaring example was the opportunity offered by the air strikes carried out by the West which destroyed the regime's tanks and artillery outside Benghazi and forced its soldiers into a terrified retreat to the next city, Ajdabiya.

Rather than press home their advantage and retake Ajdabiya, the rebel fighters – known as the Shabaab – were too busy having their pictures taken with the wreckage or looting anything left intact from the supply trucks. A desultory attack late in the day was easily repulsed by the regime's forces which then dug in around the city.

*
The rebels' operations are further undermined by an absence of command and control. On Monday two men standing within a hundred yards of each other, "Captain" Jalal Idrisi and "Major" Adil Hassi, claimed to be in charge of the fighters who were meant to be attacking Ajdabiya. A brief advance soon turned into a chaotic retreat. Major Hassi then claimed that the misjudgement in going forward had been Captain Idris's idea. But why didn't they liaise? "We haven't got communications equipment" he responded. But the Captain is standing just over there, journalists pointed out. "I don't talk to him," said Major Hassi.

(Then again, how often have we encountered a more-subtle version of 'left hand, meet right hand' in 1st World Armies?)

http://www.independent.co.uk/opinion...e-2251298.html

[M-A Lagrange]

This is not peace keeping, peace making, or war.

How about "Violence Mitigation"? The whole idea should be to encourage both sides to shift to less violent tactics and to get them to a mediated resolution of their own design.

Sometimes the big guy needs to step in, crack some heads together, and make people work it out. He can't solve it for them, and he shouldn't help one side win either. Just set some parameters and let them work it out.

Bob, I think you're right. The whole purpose is to bring some proportionality into this. And some gentlemen manners on G side.
The rest is left to them to solve.

[Entropy]

This is not peace keeping, peace making, or war.

How about "Violence Mitigation"? The whole idea should be to encourage both sides to shift to less violent tactics and to get them to a mediated resolution of their own design.

Sometimes the big guy needs to step in, crack some heads together, and make people work it out. He can't solve it for them, and he shouldn't help one side win either. Just set some parameters and let them work it out.

Can you provide any example where what you've described has actually worked?

[Ken White]

Great question...

[Bob's World]

Can you provide any example where what you've described has actually worked?

Where it worked? Or where the intervening party was able to constrain itself from pressing for its own agenda and carrying one side to victory that they thought would best serve their interests?

I will have to think on that, and I suspect there are very few examples due to the historic fact that in the past, establishing a beholding regime was the proven method of advancing one's interests in some region.

That model has been failing at an accelerating rate for at least 150 years in correlation with advances in information and transportation technologies.

In today's environment, the US's interests are best served by a solution that the local populace perceives to be of their own design and making. At some point one has to break with the past to move forward. Perhaps this is that point where we finally turn loose and take that risk.

[davidbfpo]

Entropy,

I would suggest the Lebanon, where IIRC Syria intervened in the civil war, effectively freezing the situation in Beirut and yes violence lessened, the issues did not go away alas. I am sure Rex B. or Wilf can comment better.

Near to home I would say Northern Ireland, underpinning the UK's response to violence was containment and the prevention of escalation. It took a long time and was a "bumpy" journey. Certainly at the start of the latest round, 'The Troubles' in 1969 few would have foreseen the Good Friday Agreement, let alone today Sinn Fein and the DUP in a governing coalition.

Maybe Cyprus? Further back I think the interventions of the League of Nations in post-1918 Europe merit some attention, Upper Silesia comes to mind and the population transfer between Greece and Turkey.

[jmm99]

You should clear out some deadwood in your PM storage box.

Cheers

Mike

[slapout9]

How about "Violence Mitigation"? The whole idea should be to encourage both sides to shift to less violent tactics and to get them to a mediated resolution of their own design.

Point 1:There is an old expression and I don't remember who said it but it goes like this. "Don't strike the King unless you intend to kill him."

Point 2: Daffy is a psychopathic megalomaniac.....mediate??? If Daffy survives he will just become bolder, that is how these people work. And I use the term people loosely because he is not a People, he is an animal in disguise. You need to go after him, his thugs and all their personal property. If you don't, sooner or later he will extract revenge. The man wears an elephant hat and remember elephants don't forget.

[AdamG]

Point 1:There is an old expression and I don't remember who said it but it goes like this. "Don't strike the King unless you intend to kill him."

Point 2: Daffy is a psychopathic megalomaniac.....mediate??? If Daffy survives he will just become bolder, that is how these people work. And I use the term people loosely because he is not a People, he is an animal in disguise. You need to go after him, his thugs and all their personal property. If you don't, sooner or later he will extract revenge. The man wears an elephant hat and remember elephants don't forget.

Either
Ralph Waldo Emerson

or Machiavelli (the jist, at least), take yer pick.

"And here we must observe that men must either be flattered or crushed; for they will revenge themselves for slight wrongs; whilst for grave ones they cannot. The injury, therefore, that you do a man should be such that you need not fear for revenge." - Niccolo Machiavelli, The Prince, Chapter 3.

[Bob's World]

Point 1:There is an old expression and I don't remember who said it but it goes like this. "Don't strike the King unless you intend to kill him."

Point 2: Daffy is a psychopathic megalomaniac.....mediate??? If Daffy survives he will just become bolder, that is how these people work. And I use the term people loosely because he is not a People, he is an animal in disguise. You need to go after him, his thugs and all their personal property. If you don't, sooner or later he will extract revenge. The man wears an elephant hat and remember elephants don't forget.

Isn't this what so many said about Saddam? Blowing out the old and creating a power vacuum for everyone to fight to fill is no high road to success.

Neither is latching onto some side, like the Northern Alliance and carrying them to victory, only to get stuck to their own bad politics, ill will and poor governance like the proverbial tarbaby.

What do they say we use, 20% of our brains? Might be about time to dip into the reserves for another 1%.