The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes — although unmanned drones operated by the United States periodically fire missiles as well.
They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians.
“We are not saying the president can take the country into war on his own,” Mr. Koh said. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”
In fact, we’re really not “constrained” by the UN’s Libya resolution. That’s why it was big news last week when NATO finally admitted that it’s targeting Qaddafi after spending the past three months insisting that it was only acting to protect Libyan civilians. There’s no “constraint” if the meaning of the resolution can change at the coalition’s whim, and since when is congressional oversight of U.S. military action satisfied by UN constraints anyway? But never mind that. The bigger issue, per the boldfaced bits, is that the White House is actually offering three distinct rationales for why the WPA might not apply. Do all three need to obtain in order to render the Act inoperative or will any one suffice? I doubt even Obama is hubristic enough to send ground troops into battle without congressional approval, so the “no forces at risk” condition is mandatory. Not sure about the other two, though. What happens if France and Britain decide to end the mission, forcing NATO to hand things back over to the U.S., and O elects to ramp up the drone strikes in an all-out bid to topple Qaddafi? There still wouldn’t be any forces at risk, but the “support role” and “no chance of escalation” conditions would be violated. Where would that leave us in terms of deciding whether the WPA applies?
Whatever. They’re doing this not because they feel duty-bound to explain but because Boehner put them in a bind yesterday at a moment when there may, finally, be light at the end of the tunnel for the mission. The rebels are advancing towards Tripoli under cover of NATO air power and, according to David Ignatius, an envoy sent by Qaddafi’s intelligence chief is prepared to offer a deal in which Qaddafi would cede power and “retreat into the desert” in return for sparing his life. O’s probably hoping/expecting that his “no hostilities” argument will give Boehner enough political cover to hold off on legal action for a few more weeks until we see how things shake out on the ground. Not everyone in the House is prepared to be so accommodating — below you’ll find video of Kucinich and a few others announcing their intent to sue The One over the WPA — but my guess is that that suit will fail under the “political question” doctrine anyway, so Boehner will be in no hurry to join it. One question I’m left with: What’s the difference, according to the White House’s War Powers logic, between what we’re doing in Libya right now and what we’re doing in Yemen? Special Ops has been using drones and remotely piloted planes in Yemen for years; CIA drones are set to join the battle soon to provide more firepower against Al Qaeda. So while there are no U.S. forces at risk, the mission is escalating and we’re not in a support role. Does that mean the WPA does or doesn’t apply? Or is it the White House’s position that the 2001 Authorization to Use Military Force passed after 9/11 lets it go after AQ anywhere, in perpetuity, so that a new congressional authorization isn’t needed?