War and Power, in Libya and Congress

Why are we not at war in Libya, according to President Obama? His Administration, in response to a letter from John Boehner and anger from his own party, has sent some notes to Congress explaining why the War Powers Resolution does not apply there; the reasons are not very persuasive. The law says that a President has sixty days—or ninety, if it’s an emergency—to get Congress’s approval for military actions, and that this applies

to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

Qaddafi is certainly hostile; the military’s actions involve bombing the capital and sending in cruise missiles, providing air support for the Libyan opposition, and hitting air defenses—lots of forces. The Pentagon has spent almost three quarters of a billion dollars. Doesn’t that count? The Administration says no; the Libyan operations “are distinct from the kind of ‘hostilities’ contemplated” by the law. Why? First,

U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution.

But the War Powers Resolution doesn’t say anything about wars in which we have allies not counting, or ones the U.N. likes; it isn’t about lonely wars or bad wars, just wars. The Administration adds a second set of rationalizations, which make even less sense:

U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.

Is the point that, while we are bombing Libya, we are doing it from a distance, out of Qaddafi’s forces’ range, so there aren’t “exchanges” of fire, just one-way barrages—hostility, rather than hostilities? By the same reasoning, it wouldn’t count as war if any overwhelming force attacked anyone who couldn’t effectively hit back; that exemption could apply not only to cruise missiles and drones but to a column of tanks rolling into a village. Is the only concern of the War Powers Act—is our only concern about war—whether our own soldiers can be shot? Aren’t we also interested in making sure there is some accountability when our government decides to shoot? (Would, someday, Congress have a say when it came to human troops, but not robot soldiers?) A war is not simply a short-term public-health issue; it can inveigle our country diplomatically, financially, and morally for decades.
The other question is whether the Administration’s summary even describes the reality on the ground in Libya. (No “sustained fighting”?) And given reports of covert operatives, the pressure to end a stalemate, and the continuing threat to civilians, the assertion that there is no “significant chance of escalation” is mysterious—does it just mean that we promise we won’t go in too deep? Wishful words don’t dispel legal obligations.
“We are not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress,” Harold Koh, a State Department legal adviser, told the Times. Some people do say those things—and the law’s vulnerability makes the Administration’s unserious approach even worse. One can argue about whether our campaign in Libya is wise or worth it, and talk about saving civilians, but that discussion has to start by calling a war what it is. Congress shouldn’t be treated as a hostile force.

Amy Davidson @'The New Yorker'