Eliot Spitzer challenged Rep. Michael Capuano (D-MA) on his lawsuit against Barack Obama and American military action in Libya this morning on In The Arena, hitting the bipartisan legal fight on both pragmatic and legal grounds. Capuano tells Spitzer that he remains a supporter of Barack Obama, but that this is about more than just one particular President — and that Congress has to take part in these decisions. Capuano acknowledges that courts have been loathe to intervene in a way which essentially orders a President to disengage, but that these circumstances are extraordinary and unprecedented:

I’m not sure what Spitzer was thinking about Congressional actions in military operations. Both post-9/11 wars were authorized by Congress in explicit acts (AUMFs) that authorized the President to conduct military operations in Iraq and Afghanistan. The first AUMF was even broader, authorizing a global war against al-Qaeda and nations that harbored or supported them. While it’s true that Congress hasn’t explicitly declared war in decades, they have authorized every military action since then, at least those which lasted more than a few days. Our involvement in the attack on Libya has dragged on for three months.

Precedent, then, won’t be a handy refuge for the President.  However, the odds of getting a court to order a withdrawal from the hostilities is nearly zilch.  For one thing, it would cross into our treaty obligations with NATO partners, a refuge that Obama has just recently begun to use.  For another, courts may be inserting themselves into war-fighting issues that don’t directly impact on combat situations, but it would be a highly extraordinary intervention indeed for a court to order a retreat under any circumstances.  The most a court might do is order Obama to seek Congressional approval and impose penalties for non-compliance.

That prompts another question, though, which is why Obama is so reluctant to seek Congressional approval in the first place.  Had he done so immediately, he almost certainly would have gotten it.  Obama would probably have gotten approval two weeks ago when the deadline was approaching, and still would be more likely than not to succeed if he asked for it now.  Congress would take some time to criticize his lack of respect for the co-equal branch, but in the end Congress would be just as loathe to order a retreat as the courts.  What exactly does Obama fear from such a request?