The timeline goes like this. The House passed a resolution forcing the President to write a term paper justifying the military operation in Libya. The Administration didn’t seem too keen about actually getting that done. John Boehner said, weeks after asserting that the Administration had passed the war powers test, that they would be in violation of the War Powers Act by the weekend, at the 90-day mark of the operation (the War Powers Act has a 60-day deadline for Congressional authorization, so why 90 days has anything to do with it is unclear). At the same time, 10 members of Congress sued the Administration for breaching the Constitution by going to war unilaterally without the consent of Congress.
Then, all of a sudden, the President sent a letter to Congress, as well as a 30-page report and a legal analysis, justifying the US role in the conflict. In essence, the White House’s argument is that the War Powers Act doesn’t apply:
Senior administration officials said that the president is not challenging the constitutionality of the resolution by not requesting approval from Congress, but instead maintained that because the U.S. is acting in a support role with no troops on the ground, no war authorization is necessary.
The U.S. is “not engaged in any of the activities that typically over the years in war powers analysis is considered to constitute hostilities within the meaning of the statute,” White House general counsel Bob Bauer explained.
“We’re not engaged in sustained fighting,” Bauer said. “There’s been no exchange of fire with hostile forces. We don’t have troops on the ground. We don’t risk casualties to those troops. None of the factors, frankly, speaking more broadly, has risked the sort of escalation that Congress was concerned would impinge on its war-making power.”
This is an asinine argument. NATO is fighting a war with close air support over Libya. The US is involved, in part by dominating NATO, and in part by actually using US assets in the fight. They’ve spent $715 million so far and expect to spend $1.1 billion by the end of September. This must be expressly authorized by Congress. The idea that the war is safe, or doesn’t threaten casualties, has no bearing on what branch of the government can intervene in a military operation. The President’s own letter says that “U.S. support for the NATO-based coalition remains crucial to assuring the success of international efforts to protect civilians and civilian populated areas from the actions of the Qadhafi regime, and to address the threat to international peace and security posed by the crisis in Libya.” You cannot say that and then also say that the US has no military role.
Charlie Savage has more on this, and it’s really a stunning argument.
“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.”
There’s no risk to US forces when a Predator drone bombs Yemen or Pakistan, right? Since JSOC forces are covert and not expressly even characterized as forces, there’s no risk to US forces when they engage in an operation, right? This argument just changes the nature of “hostilities” in a way that can clearly give the executive the ability to wage all kinds of wars around the world. As Dennis Kucinich says, this is nothing new:
“The claim that U.S. involvement in Libya does not constitute placing our armed forces in imminent hostilities has been used time and again throughout our history. It was used in El Salvador, Honduras and in Lebanon, where members of our Armed Forces lost their lives. We cannot fall in the same trap. According to an analysis by the Guardian UK, more than one month after NATO took over operations, the U.S. had thus far provided 93% of the cruise missiles, 66% of the personnel, 50% of the ships and 50% of the planes for the international operations in Libya at a cost to the American taxpayers now rapidly approaching a billion dollars. The White House claim that the war is not war is not a legal argument. It is a political argument. The legal argument will hopefully be addressed by the courts. Today, I, along with 9 of my colleagues, filed suit in federal court challenging the rationale that has brought our nation to an Orwellian war that is not war.”
Meanwhile, the UK has admitted that airstrikes will not force Gadhafi’s exit in Libya. In other words, the limited “hostilities” will have to escalate – and have escalated – in order to meet the goals of the mission. The official line is that NATO hopes for defections and pressure to force Gadhafi out. This doesn’t mean that the bombing is stopping; it’s being stepped up, in fact.
It remains to be seen if the House GOP leadership will actually do anything about this; the Administration’s arguments aside, the only way anything changes is through some actual enforcement. My tendency is to think that Congress will shrink from this Constitutional crisis, because they don’t want to have any role in matters of war. The court case from Kucinich and his colleagues is a long shot, but probably the only hope.