The War Powers Resolution and Libya, Part III -- what exactly is our role in the fighting?

The Administration's June 15, 2011 report to Congress is a detailed account of our engagement in the fighting in Libya. It does demonstrate that our involvement is restricted. In particular, it explains Secretary of State Clinton's recent statement that we were still responsible for 25 % of all sorties. I said in a post two days ago that the new report, as described in the New York Times, seemed to describe a less extensive level of activity. But I now understand that there was no inconsistency. Here's what the report says (at 8):

"Three-quarters of the over 10,000 sorties flown in Libya have now been by non-U.S. coalition partners, a share that has increased over time." That's the same figure Secretary Clinton referred to (since it leaves 25 % of sorties as flown by the U.S.). Moreover, the report's explanation indicates that the percentage of sorties flown by the U.S. currently must be less than 25 %, since the non-U.S. share has risen over time to the 75 % level.

Also important, in terms of measuring our involvement in combat, is this observation (at 9): "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."

Our sorties, then, are primarily not "strike sorties." Presumably they are flights carrying out surveillance and refueling missions, both of which the report emphasizes the dominant US role in providing (9).

But it is worth noticing that we do still have a part in the fighting as well as its support. Apparently this takes three forms:

(1) "[O]ccasional strikes by unmanned Predator UAVs against a specific set of targets"

(2) "[S]uppression of enemy air defense": It's notable that the report does not refer to strikes for this purpose as "occasional." Nor does it say they are carried out by Predator drones. Apparently, then, our planes and pilots are carrying out some considerable number of strikes aimed at suppressing enemy air defense, presumably by bombing and or firing upon those air defense facilities.

(3) Rescue operations: Although the Administration, as a recent New York Times report notes, has "emphasized that there are no troops on the ground," rescue operations are a possible exception to this proposition. The Administration's June 15, 2011 report offers this observation (at 11): "As President Obama has clearly stated, our contributions do not include deploying U.S. military ground forces into Libya, with the exception of personnel recovery operations as may be necessary." The report does not spell out whether or how often we have actually had ground forces in Libya for this purpose, but this sentence leaves the impression that such operations have taken place.

Literally, these operations constitute an "introduction" of troops into Libya, and presumably there is a real possibility of hostilities -- fighting -- in such moments. One might say, therefore, that these operations are a particularly likely trigger of War Powers Resolution requirements. But it might be said in response that these moments are too fleeting to count as a sustained introduction of troops into hostilities or imminent hostilities. It's our other operations that are sustained, presumably daily interventions -- mostly not in shooting, but certainly in guiding (by surveillance) and enabling (by refueling) the shooting done by our allies in NATO.

If we were only shipping munitions to our NATO allies, I think the law of war would not treat us as a party to the conflict, nor view our soldiers as combatants. But our involvement is much deeper than that. We are very much part of the fighting, though we evidently fire weapons ourselves relatively little. The Libyans lack the means with which to shoot at our planes -- but surely, if they could, they would be acting within the law of war to fire on our planes as they engaged in surveillance or aerial refueling of NATO bombers. To be clear, I'm not suggesting in any way that Qadhafi's cause is just. But the law of war that regulates how wars are carried out permits both sides to fight, even if one side had no right to go to war. In general it is no crime for a uniformed soldier who is fighting for an unjust cause to shoot at enemy soldiers whose cause is just.

The reality that our forces are acting as combatants strikes me as another indicator (in addition to those I discussed in my earlier post) that the War Powers Resolution's requirement of Congressional approval is now in play. Broadly speaking, we should want -- and we should understand the Constitution and the War Powers Resolution to require -- Congress to state its approval for our nation taking actions that under international law would permit our forces to be fired upon. Even if our forces are so superior that their actions are truly risk-free (a very unlikely hypothetical), when we cross the line international law draws between peace and hostilities, we ought to decide as a nation that we mean to.