How President Obama Can Help Libya

By David M. Tafuri 

Timidity can cost lives, in war and in diplomacy. The United States and NATO were right to intervene in Libya this spring. Moammar Gaddafi’s forces were at the gates of Benghazi, hours away from overrunning the city and brutally ending the Libyan people’s struggle for freedom from Gaddafi’s 40-year dictatorship.

Libyans will forever remember the U.S. leadership during their hour of great need. They and our allies are watching the debate between President Obama and Congress over who has authority to authorize this mission — which the House declined on Friday to give the president — and whether the president can continue military support.

The opposition leaders in Libya, the Transitional National Council, understand that this debate must be resolved internally.

But separate from the war powers debate, the president could give the TNC much of what it needs with one diplomatic stroke. The power to recognize successor governments of foreign states lies solely with the executive branch.

The president has already recognized the TNC as “the legitimate interlocutor of the Libyan people.” Secretary of State Hillary Clinton, who has met with TNC leaders, has said that the TNC is the institution through which the U.S. government “engages” the Libyan people. France, Italy, Germany, Canada, Qatar, the United Arab Emirates, Jordan and others have given some level of recognition.

When the president’s top diplomat for the Middle East, Assistant Secretary of State Jeff Feltman, visited Benghazi this month, he found a sense of joy, opportunity and gratitude to the United States unlike anything he had seen in his diplomatic career. “The TNC seems sincere in its commitment to building an inclusive, democratic Libya that is a partner with us,” he wrote. “And they are working to build functioning, accountable institutions from scratch, in the midst of an ongoing conflict.”

Feltman noted the contrast with the Gaddafi regime, which has vowed to hunt down “like rats” anyone who opposes the colonel.

But the State Department mandate remains unclear. State invited the TNC to open an office in Washington but noted in discussions this month that it would not be possible to provide access to the Libyan Embassy, its vehicles or its small bank account because Gaddafi has asked that they be preserved for his regime. U.S. officials acknowledge that Gaddafi forces have burned down the U.S. Embassy in Tripoli. Yet the administration continues to stall on providing full diplomatic recognition to the TNC.

Why wait? 

Full diplomatic recognition would, first and foremost, legitimize the struggle of the TNC on behalf of the Libyan people against the Gaddafi regime. It would strip Gaddafi of any vestige of legal or diplomatic status to claim he is Libya’s rightful leader; would allow the TNC to oversee the $34 billion in Gaddafi assets frozen in the United States (funds that really belong to the Libyan people); and would reassure the international community that the TNC, not Gaddafi’s regime, has the right to transfer valid title to Libya’s natural resources.

The latter are critical to taking away Gaddafi’s financial advantage. Recognition would speed up a process begun when legislation — supported by the administration — was introduced in the Senate this month to confiscate Gaddafi’s frozen assets for humanitarian efforts in Libya. Unfortunately, that legislation is intertwined, and now bogged down, with the dispute over the 1973 War Powers Resolution.

The TNC is running out of money, while Gaddafi has been able to perfect a system of covert transactions during more than 30 years of sanctions. This provides him with the resources to pay foreign mercenaries to fight this war for him and to pay for smuggled imports of fuel and supplies.

The president has said that “it is U.S. policy that Gaddafi needs to go.” He has supported this policy militarily but with little diplomatic heft. Providing full legal and diplomatic recognition to the TNC, and the accompanying benefits, would hasten the TNC’s ability to achieve that goal without adding burdens for the U.S. military or U.S. taxpayers.

Traditionally, other nations recognize a new government when, among other things, it has control over its territory and general authority over its people, and it is able to enter into agreements with other nations and entities. Already, the TNC controls the majority of Libya. It acts as the government, maintains law and order, and provides basic services and support to the Libyan people. It has made agreements with other countries, such as Italy, Kuwait and the UAE, to secure loans and other support.

Our allies in Europe and the Middle East understood that by recognizing the TNC and providing access to funds belonging to the Libyan people, they would enhance the TNC’s legitimacy. Rather than drag its feet, Washington should remember that France, the Netherlands and Morocco all recognized the United States well before we defeated the British in the Revolutionary War.

Last month, 23 regional councils and tribes (including one specifically representing women and one from Gaddafi’s home town) announced their unequivocal support for the TNC during a conference in Qatar, and many more have since expressed their support.

Self-determination is an American ideal. We should provide the diplomatic recognition the TNC needs so Libyans can win their freedom with their own money and on their own terms.

The writer, a State Department official from 2006 to 2007, is a partner at Patton Boggs. He serves as legal counsel to the Transitional National Council of Libya.

This commentary was published in The Washington Post on 25/06/2011