Libya and the War Powers Resolution -- Part II

Today, June 15, 2011, President Obama has issued at last his explanation of why he believes he can continue our involvement in the fighting in Libya despite the fact that there has been no Congressional enactment of the "specific statutory authorization" seemingly required by the War Powers Resolution (WPR). Presumably this announcement means that the White House has given up on the strategy of actually seeking congressional approval; in theory, given this position, the White House should now feel that efforts by sympathetic legislators to proceed under the WPR are actually based on a legal mistake.

The fact that this explanation emerged so late -- 88 days after our involvement in Libya began -- and only after the House of Representatives had demanded an explanation in itself casts doubt on the explanation's persuasiveness. If it was that good an argument, why didn't it get made earlier? The White House's unwillingness to say whether the Office of Legal Counsel -- the elite Department of Justice unit with a tradition of nonpartisan independence (a tradition tarnished during the Bush years) -- agreed with its theory also raises doubt. (These features are reported in Charlie Savage & Mark Landler, "War Powers Act Does Not Apply to Libya, Obama Argues," N.Y. Times, June 15, 2011. I'm also relying here on Savage & Landler's account of the arguments made in the 32 unclassified pages of Obama's report to the Speaker of the House of Representatives. I may have more to say once I've read the report!)

Nevertheless, Obama's argument could be right. His position is that the particular role we now have doesn't amount to involvement in hostilities. What is that role? Notably, it does not involve ground troops at all. Also notably, it exposes our forces to little or no risk of being fired on -- the Libyans haven't got the guns, and we keep our distance. What we are doing, as Savage & Landler summarize the Administration's presentation, is providing surveillance and refueling for other NATO states' planes, and using unmanned drones to fire on Libyan targets. (Interestingly, this level of activity seems less than what Secretary of State Clinton had described, in a remark I cited in my previous post on this issue.) In making this argument, as Savage & Landler also note, Obama joins other administrations which have also tried to read narrowly the War Powers Resolution's focus on the introduction of US forces into hostilities (though not on these particular grounds). In doing so he can find important interpretive leverage in the fact that the WPR never defines the relevant term "hostilities" or, for that matter, "introduction" (as in the "introduction of US forces into hostilities"). And it is important to recognize that Obama has not disputed the War Powers Resolution's constitutionality, only its applicability.

Still, this argument should not be accepted. The fact that the Libyans can't strike at us doesn't mean that we aren't killing them, and doesn't mean we aren't incurring the high economic costs of war and the many political entanglements it risks. Nor is it possible, in an age of terrorism, really to be certain that we won't be attacked in turn, either by the Libyans (the authors of the Lockerbie bombing) or by others who make, or pretend to make, the Libyan cause their own.

But perhaps the clearest refutation of this position comes from applying its logic. If we're not engaged in hostilities now, apparently we could continue this conduct indefinitely and still not be engaged in hostilities. We might also be able to increase the scale of our involvement by some considerable margin, still without crossing the hazy line around the zone of "hostilities." All this unless Congress musters a veto-proof and interpretation-proof statutory prohibition (or the President runs out of money that he can tap from the notably flexible Pentagon budget).

Why should the President have such an authority? We are far past a short-term emergency, far past a quick and "surgical" strike, and quite a ways removed from any direct threat against the United States that provided a reason for war resting in immediate national self-interest. It seems to me that if we take seriously the idea that both elected branches of our government must concur in decisions on war, that principle requires congressional concurrence now. I would read the War Powers Resolution as saying exactly that.

I would support Congress issuing that concurrence. I fear that if given the chance Congress won't do so, and that much of the reason will be partisan politics. But that's what a democracy is: a country where the people, with all their wisdom and unwisdom, rule.