When can President Barack Obama use military force against Libyans without prior authorization from Congress and when can he not?
In response to a question from Rep. Michael Conaway (R.-Texas), Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, told a closed session of a House Armed Services subcommittee in October that the military cannot kill the terrorists who attacked the State Department and CIA compounds in Benghazi, Libya, because Congress has not authorized the use of force against those terrorists.
"Therefore, they will have to be captured," Dempsey said in a transcript of the testimony released this week.
In 2011, by contrast, Obama did not defer to Congress — which represents the American people and is vested with the constitutional power to authorize the use of military force — when he ordered the U.S. military to intervene in Libya's civil war. Instead he invoked the authority of the United Nations Security Council — where Russia and the People's Republic of China have veto power.
"[T]he writ of the international community must be enforced," Obama said then.
Ten years before Obama unilaterally ordered the U.S. military to intervene in Libya's civil war, President George W. Bush secured congressional authorization to use military force against the perpetrators of the Sept. 11, 2001 terrorist attacks on the American homeland.
The Authorization for Use of Military Force — enacted Sept. 14, 2001 — said: "The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
As Congress expected, Bush used this authorization to invade Afghanistan, overthrow the Taliban and drive al-Qaida from that country.
Twelve years later, Obama was still invoking this same authorization to justify using drones to kill terrorists far outside Afghanistan.
"Nearly 400 drone strikes, in Pakistan, Yemen and Somalia, have been launched by the CIA and U.S. military forces during Obama's presidency," the Washington Post reported last year.
"America's actions are legal," Obama said in a speech in May. "We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al-Qaida, the Taliban and their associated forces."
"Beyond the Afghan theater, we only target al-Qaida and its associated forces," Obama continued. "And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect for state sovereignty."
Theoretically, then, when Obama targets an enemy with a drone that enemy is among "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."
On Sept. 11, 2012, in post-Gadhafi Benghazi, terrorists attacked a temporary State Department facility and a CIA compound. They killed four Americans.
In May 2012, the chairmen of five house committees published an interim report based on their investigation of the attack. "The attackers were members of extremist groups, including the Libya-based Ansar al-Sharia (AAS) and al-Qaida in the Lands of the Islamic Maghreb (AQIM)," said the report.
Would Obama, with a history of unilaterally ordering military force in Libya, and a history of using the 2001 AUMF to go after al-Qaida outside Afghanistan, order drones to take out the Benghazi terrorists — or at least the al-Qaida affiliates among them?
According to Gen. Dempsey, that would not be legal.
"Well, first of all, the individuals related in the Benghazi attack, those that we believe were either participants or leadership of it are not authorized [for] use of military force," Dempsey told the subcommittee.
"In other words, they don't fall under the AUMF authorized by the Congress of the United States," said Dempsey. "So we would not have the capability to simply find them and kill them, either with a remotely-piloted aircraft or with an assault on the ground. Therefore, they will have to be captured, and we would, when asked, provide capture options to do that."
At a press conference on Aug. 9, Ed Henry of Fox News asked Obama about his vow to "bring to justice the killers who attacked our people" in Benghazi.
"[W]e have informed, I think, the public that there is a sealed indictment," Obama said. "It's sealed for a reason. But we are intent on capturing those who carried out this attack. And we are going to stay on it until we get them."
If the al-Qaida-affiliated terrorists in Libya had been allied with Gadhafi, would Obama have ordered the military to go after them?
If Obama asked Congress for an authorization to do so now, would Congress deny it?
Does Obama care that under our Constitution he can only use force without congressional authorization if it is necessary to repel a sudden attack?