Military Force and Violence, but Neither War nor Hostilities

33 Pages Posted: 3 Nov 2016 Last revised: 15 Nov 2016

See all articles by Saikrishna Prakash

Saikrishna Prakash

University of Virginia School of Law

Date Written: November 2016


Against all hope for change, President Barack Obama has been a war president and a vigorous one at that. This Article considers the legality of his uses of force in Libya and against ISIS. When the President waged war against Libya in 2011, he acted contrary to the Constitution and its allocation of the declare war power to Congress. In simple terms, the President unconstitutionally declared war against Libya. Moreover, the aerial bombardment of Libyan forces constituted hostilities under the War Powers Resolution. Given that Resolution’s time constraint on hostilities, the President’s failure to halt the war against Libya infringed that Resolution. With respect to ISIS, however, I believe that the President’s continuing war is legal. The 2001 Authorization for Use of Military Force sanctions the use of necessary and appropriate force against those organizations that conducted the 9/11 attacks. Because al Qaeda perpetrated the 9/11 attacks, when the predecessor of ISIS joined al Qaeda in 2004, the predecessor thereby made itself a lawful target under the 2001 Authorization. Though ISIS splintered from al Qaeda in 2014, it retains the stigma of its former association with al Qaeda and remains subject to uses of military force by the United States.

Keywords: Separation of Powers, President Obama, ISIS, Authorized Use of Military Force, Libya

Suggested Citation

Prakash, Saikrishna, Military Force and Violence, but Neither War nor Hostilities (November 2016). Drake Law Review, Vol. 64, (Forthcoming), Virginia Public Law and Legal Theory Research Paper No. 2016-62, Available at SSRN: or

Saikrishna Prakash (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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