I wrote yesterday that the debate about whether the Obama administration’ s involvement in Libya is in violation of the 1973 War Powers Resolution is mostly academic, since Congress is basically impotent to stop the President from directing the military to fight at his discretion. (Note: the resolution requires U.S. forces to begin withdrawing from hostilities within 60 days if Congress doesn’t formally approve. Congress has not in this case).
Having said all that, the White House is probably breaking the law. Just saying.
The White House yesterday sent Congress a 32-page report yesterday making its case. Here is the most relevant section from the White House:
The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60-day termination provision.
Okay. Except the resolution was drafted in the hangover from Vietnam. Congress went to great lengths to make sure the White House didn’t play word games to try to weasel out of the resolution’s requirements. The resolution defines war as any time U.S. fores are introduced…
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation
The White House report describes U.S. activities in the Libya war this way:
U.S. armed forces now provide unique capabilities to augment and support NATO and coalition partner contributions. These capabilities include the following: electronic warfare assistance; aerial refueling; strategic lift capability; personnel recovery and search and rescue, intelligence, surveillance and reconnaissance support; and an alert strike package.
The overwhelming majority of strike sorties are now being flown by our European allies while American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets, all within the UN authorization, in order to minimize collateral damage in urban areas. The United States provides nearly 70 percent of the coalition’s intelligence capabilities and a majority of its refueling assets, enabling coalition aircraft to stay in the air longer and undertake more strikes.
So the White House’s argument is that since our capabilities are unique and that the Europeans are blowing up more stuff than we are, that U.S. forces are not in a situation where “imminent involvement in hostilities is clearly indicated by the circumstances.” Nor are U.S. forces in the “territory, airspace or waters of a foreign nation, while equipped for combat.”
I’m not an attorney, but even if I played one on TV I don’t think I’d buy this one.