This is Obama’s big argument for why the War Powers Act shouldn’t apply to Libya, of course. No American is in any serious danger, therefore there aren’t really “hostilities” going on, therefore there’s no need for Congress to formally authorize the mission. In theory, by that logic, if the military developed the ability to wage war entirely via drones and other unmanned units, there’d be no limit to how broad the conflict could get before requiring congressional approval in the form of a constitutional declaration of war, an AUMF, or some lesser compromise resolution under the WPA.
So no one’s in danger in Libya — and yet, according to the Pentagon, the men there are in enough danger to warrant extra pay each month for participating in combat. Which is to say, it is a war. It’s just not … a war-war.
The Defense Department decided in April to pay an extra $225 a month in “imminent danger pay” to service members who fly planes over Libya or serve on ships within 110 nautical miles of its shores.
That means the Pentagon has decided that troops in those places are “subject to the threat of physical harm or imminent danger because of civil insurrection, civil war, terrorism or wartime conditions.” There are no U.S. ground troops in Libya…
“Hostilities by remote control are still hostilities,” said Sen. Richard J. Durbin (D-Ill.), normally a close Obama ally, on Sunday’s “Meet the Press.” “We are killing with drones what we would otherwise be killing with fighter planes. And we are engaged in hostilities in Libya.”…
The administration’s logic has been criticized by some academic experts. They said it amounted to an argument that a battle, if won handily enough, does not amount to a battle.
The Pentagon’s being perfectly consistent on this. Jeh Johnson, their general counsel, was one of the two lawyers who warned Obama that the Libya mission did indeed rise to the level of “hostilities” for WPA purposes. Johnson even gave him advice on how to get out of that box — simply end the drone strikes and reduce the mission to one of logistical support for NATO. O said no, leaving John Yoo and Robert Delahunty to draw this unhappy conclusion:
If these are not hostilities, then what are? By Obama’s lights, President Nixon’s air campaign over Cambodia — the very kind of operation at which the WPR was aimed — would not count as “hostilities.” Nor would President Reagan’s decision to mine Nicaragua’s harbors, or President Kennedy’s Bay of Pigs fiasco. In those cases too, no U.S. ground forces were introduced; there was little to no risk of U.S. casualties; exchanges of fire were limited or non-existent. Likewise, by Obama’s test, a future president could launch multiple drone attacks on Venezuela if Hugo Chavez refused to step down — or even drop a nuclear weapon on downtown Caracas — without engaging the U.S. in “hostilities.”…
Obama’s indefensible interpretation of the WPR is transparently driven by politics. The WPR is a liberal icon, passed by a Democrat-controlled Congress over Richard Nixon’s veto in the depths of Vietnam and Watergate. Even when presidents have given it lip service, the WPR has failed in its objective of subjecting presidential war-making to tight Congressional controls. Bill Clinton’s 1999 war in Kosovo was emblematic of that failure; the sole sign of Congress’s support was a supplemental appropriation to pay for the costs of air operations. But liberals like Obama think it is useful to keep the WPR on life support — even while disregarding it themselves — in the hopes of resurrecting it against future Republican presidents. That is probably bad as politics; it is certainly contemptible as law.
Excellent point. Obama actually had a lot of options available to resolve the WPA standoff. He could have taken Johnson’s advice and scaled back the mission, which probably would have placated Boehner. He could have done what he should have done from day one, which is seek formal authorization from Congress with McCain and Graham leading the way in support on the Republican side. He could have been bold and dismissed the WPA as an unconstitutional infringement on the president’s military powers and dared Boehner to defund the mission if he opposed it that much. (Where that would leave us vis-a-vis Congress’s war power under Article I, Section 8, I have no idea.) Or he could have done what he actually did: Retain the aegis of legitimacy of the WPA while ignoring it in practice by insisting he was in compliance with it even though his own lawyers said he wasn’t. Or rather, I should say, most of his own lawyers. One of the ones who told him what he wanted to hear was Harold Koh, whose big selling point on the left when he went to work for State was that he’d, um, rein in executive power.
Exit question via Hugh Hewitt, citing Nixon’s “Saturday Night Massacre”: If Johnson, Eric Holder, and OLC director Caroline Krauss believe Obama is breaking the law by engaging in “hostilities” in Libya, why don’t they resign? And another question: Why is the media treating Friday night’s Obama-ignoring-his-own-lawyers bombshell as if it’s a one-day story?