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Things are heating up over Libya and I do not mean just NATO’s sustained aerial bombing campaign. President Obama is facing a challenge in Congress and in court over his failure to seek congressional authorization for U.S. military involvement in the Libyan war in accordance with the United States Constitution and the War Powers Resolution. And while the Obama administration seems to think that all it needs to do is to act within the authority granted by the United Nations Security Council, tempers are beginning to fray at the Security Council, too, as the war drags on.
House Speaker John Boehner (R-OH) sent a letter to President Obama on June 14th warning the White House that its continued deployment of U.S. military troops in the North African country appeared to violate the law requiring any U.S. president, within 60 days of his the launching of a military engagement, to secure congressional authority for doing so. The letter told President Obama that he was out of time and demanded a legal justification for passing the deadline.
Meanwhile, ten congressmen, led by Reps. Dennis Kucinich (D-OH) and Walter Jones (R-NC), filed a bipartisan complaint in the U.S. District Court for the District of Columbia on June 15th challenging the legality of Barack Obama’s military intervention into Libya without congressional authorization. They allege it violates the Constitution and the War Powers Resolution. The complaint seeks “injunctive and declaratory relief to protect the Plaintiffs and the country from a policy that a president may commit the United States to a war under the authority of the United Nations without authorization from Congress.”
The White House responded on June 15th with a report that purported to legally justify why President Obama could go it alone in Libya without congressional approval, even though the Obama administration has acknowledged that the Libyan war is not a response to a direct threat to the United States. Indeed, on March 28, 2011, President Obama described the Libyan conflict as one of the “times . . . when our safety is not directly threatened, but our interests and our values are.” President Obama also said that the United States would be involved for a matter of days or a few weeks. We have now been involved for three months and counting.
The administration is trying to argue that it does not matter since we are not really involved in hostilities over the “shores of Tripoli.” According to the Obama administration’s reasoning, our limited support for our NATO allies who are doing the heavy lifting in conducting the aerial bombing does not rise to the level that would warrant the congressional approval requirements of the War Powers Resolution.
In a joint interview to explain their rationale, Harold Koh, the State Department legal adviser, and Robert Bauer, the White House counsel, argued that American forces had not been in “hostilities” at least since early April when NATO took over leadership of the bombing campaign.
The Obama administration lawyers also sought to justify their position that the War Powers Resolution does not apply to Obama’s involvement of U.S. military forces in Libya because there are no troops on the ground and American forces face little meaningful threat from an exchange of fire with Libyan forces:
We’re 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. We’re not engaged in sustained fighting. 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.
Who knew that the estimated expenditure of $1.1 billion by this September at the current scale of operations ($715.9 million, from mid-March through June 3), the flying of missile-firing drones in Libyan airspace, search and rescue missions, and the continued flying of about a quarter of all air missions over Libya (including refueling and intelligence sorties) was so trivial?
Speaker Boehner’s spokesman Brendan Buck said that there were a number of questions regarding “the creative arguments” being made by the White House. That is an understatement.
Without getting too technical, the first thing to note in the War Powers Resolution is that it is not limited to requiring U.S. military intervention in which only ground troops are involved. Section 4 (a)(2) refers to the introduction of United States Armed Forces “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.”
What is it about the words “airspace of a foreign nation” that the Obama administration does not understand? Are they prepared to argue that our troops providing surveillance and logistical support are not “equipped for combat” in case they do meet armed resistance from Libyan government forces?
Moreover, according to public reports, U.S. personnel with Army Special Forces units and the Central Intelligence Agency (CIA) have been on the ground in Libya to assist the rebel forces. And does anyone seriously believe that if one of our unarmed drones were to go down we would just leave it there and allow the Libyan forces to get hold of our valuable technology for possible sale to one of our adversaries such as China?
The exception in Section 4 (a)(2) of the War Powers Resolution for “deployments which relate solely to supply, replacement, repair or training” applies to those activities in support of our own troops, not those of other NATO countries engaged in an offensive military operation, nor those of the Libyan rebel forces.
Section 8 (b) of the War Powers Resolution does allow “members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries” without any further specific congressional authorization, but only “in the headquarters operations of high-level military commands which were established prior to the date of enactment of this joint resolution.” In other words, our high-level military commanders can work with their NATO counterparts within the structure of pre-existing “headquarters operations” without further specific congressional approval. But this does not mean that the president is free to unilaterally put American military forces in harm’s way in support of NATO’s ongoing military intervention within the airspace of another country — one in which NATO has intervened without invitation.
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