Does Ted Cruz Consider President Obama’s Military Action in Libya Unlawful?

by Gerard Emershaw

Republican Texas Senator and likely presidential hopeful Ted Cruz recently released a report in which he details 76 alleged abuses of  power by President Barack Obama. Many of the items on Cruz’s list are undeniable abuses of executive power such as the extrajudicial killing of Americans overseas by drones without due process, the continuation of aid to Egypt despite it being against American law to give aid to military juntas involved in coups, and treating secured creditors worse than unsecured creditors in the Chrysler bankruptcy.

What is most shocking is not what appears on Senator Cruz’s list but what does not appear anywhere on it. Despite mentioning President Obama’s reference to the Fort Hood shooting as workplace violence rather than as an act of terrorism, Senator fails to mention President Obama’s unconstitutional military action in Libya. If the biggest issue with the President was a matter of semantics, things would sure be peaceful. However, President Obama egregiously violated the Constitution which mandates that only Congress may declare war. President Obama launched his so called kinetic military action in Libya without the approval of Congress. The War Powers Resolution of 1973—which is itself likely unconstitutional—gave the President the limited power to introduce American military force overseas “in the absence of a declaration of war”:

The constitutional powers of the President 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 statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Qaddafi and the Libyan government had not declared war against the United States. Congress did not give specific statutory authorization for President Obama’s kinetic military action against Libya. And there was no national emergency or anything even resembling an imminent attack planned by Libya against the United States. Therefore, President Obama’s military intervention in Libya—which was the catalyst which caused the blowback that led to the tragic murder of four Americans in Benghazi—was unconstitutional. In fact, if any actions performed in office by President Obama have been deserving of impeachment, his actions against Libya have.

Why is it that Senator Cruz does not believe that President Obama’s Libyan actions were unlawful abuses of power? With Senator Cruz shaping up to be a serious future contender for the Republican presidential nomination, this is an important question. It suggests that Senator Cruz believes that the president has the constitutional authority to wage war without the approval of Congress. If so, that means that he may be no different in his outlook on foreign policy and the Constitution than President George W. Bush and President Barack Obama.

It seems unlikely that this was a mere omission on Senator Cruz’s part. After all, if his list includes the complaint that members of President Obama’s staff owe back taxes, then it is clear that he has pretty much cleared the decks and mentioned every complaint that he had with the Commander-in-Chief. This makes it appear likely that Senator Cruz may be a neoconservative posing as a Tea Partier. While Senator Cruz rightly opposed using the American military directly in support of Al Qaeda-affiliated Syrian rebels, he did propose that the United States military should invade Syria in order to secure and destroy its chemical weapons.

Unconstitutional interventionist foreign policy has been one of the most problematic parts of President Obama’s disastrous presidency. If Senator Cruz is ultimately an interventionist who believes in the unconstitutional neocon idea of the Imperial President, then he should admit it. If not, he should add President Obama’s Libyan misadventure as the 77th item on his list.   

On Abu Anas al-Libi

by Gerard Emershaw

On October 5, American commandos in Tripoli captured Abu Anas-al Libi. Al-Libi had been on the FBI most wanted list and was indicted for his alleged involvement in the bombings of the United States Embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, on August 7, 1998.

Commando raids are a far preferable way of dealing with terrorists than “shock and awe” military campaigns, invasions, or drone attacks which induce dread in civilian populations and often produce collateral damage. Capturing terrorists is also far preferable to killing for both reasons of justice and intelligence.

Unfortunately, the Obama administration has taken one step forward and two steps back with al-Libi. The operation and the decisions which followed it have been illegal and likely to cause blowback.

1. Violation of Libyan Sovereignty

The Tripoli commando raid was conducted without the permission or knowledge of the Libyan government. Immediately after the raid occurred, the Libyan government issued a statement indicating that the raid was conducted without its permission and seeking “clarifications” about the operation. The Libyan government declared the capture to be the kidnapping of a Libyan citizen. Given that the United States is not at war with Libya, it was illegal under international law for the United States to capture al-Libi without the consent of local and national authorities in Libya. In essence, the action was an illegal kidnapping and not an arrest. Given that it was NATO air support led by the United States which enabled the current Libyan government to overthrow Qaddafi, it is likely that had the United States dealt openly and honestly with the Zeidan government, al-Libi could have been arrested legally and extradited. If the Libyan government is unwilling to cooperate with the United States on such matters, then it raises the question of why President Obama got involved militarily in the Libyan Civil War in the first place.

2. Blowback Against Weak Libyan Government

Furthermore, such an action makes the struggling Libyan government look even weaker than it really is. Thanks to President Obama’s kinetic military action, the victorious rebels have many radical elements with connections to al Qaeda. If the current regime falls, then it is likely that Libya will become a terrorist Islamic fundamentalist state. If there was any question of how weak the current Libyan government is, this was answered when Libyan Prime Minister Ali Zeidan was kidnapped briefly in what he later called an attempted coup.

A government that cannot protect its own leader is incredibly weak, but things may soon become even worse for the Zeidan government. In the wake of the al-Libi kidnapping, several Jihadist groups in Libya vowed to seek revenge by carrying out attacks against the Libyan government, which these groups see as being a willing collaborator in the al-Libi raid. It is unclear whether the Zeidan government can withstand such attacks, and it is likely that should the current regime fall, it will be replaced by a fundamentalist Islamic government. This is the kind of blowback that Zeidan does not need right now.

3. Blowback Against the United States

President Obama could have arranged to help the Zeidan government quietly arrest al-Libi and extradite him to the United States. This would have made the capture a legal arrest while still providing the Zeidan regime with enough plausible deniability to protect itself from Jihadist blowback. Instead, President Obama is courting not only blowback against the Libyan government, but against the United States. Violating the sovereignty of an Islamic nation is just the sort of thing that infuriates Muslims and causes them to commit acts of terrorism. A more cautious approach would have allowed for far less righteous indignation on the part of Islamic extremists. In fact, a cooperative effort between the United States and Libya followed by a fair and public trial would have been more likely to reduce the possibility of blowback than increase it. Instead, the United States is beginning to rile up Islamic extremists once again.

4. Torture

Abu Anas al-Libi was placed on board a Navy warship where he was subjected to interrogation by “an FBI-led team with intelligence experts from the CIA and other agencies.” Al-Libi is not a prisoner of war, and if he were, it would be illegal under the Geneva Conventions to house him on the high seas. Is there any doubt that the government will be using “enhanced interrogation” in order to loosen al-Libi’s lips? Even if the FBI and CIA interrogators do not waterboard al-Libi—or worse—it is certain that al-Libi’s constitutional rights will not be honored. Al-Libi is likely to be brought to trial in a federal court in New York, so he deserves the very same rights that any other criminal defendant would have in federal court. This includes the right to be brought before a federal judge within 48 hours of his arrest. In addition to the Eighth Amendment right against torture, al-Libi has the Fifth Amendment right to due process.

Respecting the natural rights of even the worst terrorist suspects is necessary in order to allow the United States to keep the moral high ground. The federal government has had little trouble in getting terrorism convictions in criminal courts. It is simply unnecessary to use torture or any other illegal means. The more fairly the federal government treats Islamic terrorism suspects, the less likely it is to create blowback. When a Muslim is tortured and mistreated, many Muslims will be angered. When a Muslim is treated fairly and humanely and revealed to be a criminal, only the most radical Jihadists will be angered. This makes a big difference.