- The Washington Times - Monday, June 20, 2011

American unmanned aerial vehicles are making surgical strikes on Libyan targets, and U.S. forces have expended $400 million worth of munitions in defending the rebellion against Col. Moammar Gadhafi’s forces, but the administration says that doesn’t mean the country is at war — at least not for the purposes of the 1973 War Powers Resolution.

At issue is how well a 1970s-era law, passed as the Vietnam War was winding down, can govern the decidedly 21st-century military conflict in Libya.

“It’s not just UAVs that are novel, but the notion of wholly one-sided warfare,” said Robert M. Chesney, a professor at the University of Texas School of Law and senior fellow at the Brookings Institution.

“All that is a bit beyond what they would have been focused on in 1973. But, to be clear, I don’t think the administration argues that it can bomb as much as it wants to so long as the enemy can’t hit back. On the contrary, I believe they are arguing that there is a ‘scale’ or ‘intensity’ factor,” he said.

The Obama administration, in a report to Congress last week on the ongoing conflict, says that while the U.S. took the lead in establishing a no-fly zone over Libya at the outset, it has since morphed into “a constrained and supporting role” for NATO, which is now in the lead.

“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,” the report argues.

American warplanes continue to fly sorties, and unmanned aerial vehicles strike specific targets in an effort to degrade Col. Gadhafi’s forces and prevent them from overwhelming rebels. While the U.S. said Col. Gadhafi must go, the official goal of NATO’s military action is to protect civilians and stop a government-led massacre.

Some top attorneys in the administration disagreed with his read of the law, reportedly arguing that drone attacks in particular constitute the kinds of “hostilities” that would require congressional approval.

White House press secretary Jay Carney on Monday rejected those dissenting views, arguing that there are some tasks only the U.S. can do, and that justifies the level of U.S. involvement.

He said President Obama concluded “that the actions being taken by the United States in its support role for this NATO mission do not meet the threshold set by the War Powers Resolution and the hostilities phrase.”

The War Powers Resolution sets limits on how long the president can commit U.S. forces to combat without first getting approval from Congress. The key legal question is what constituted “hostilities” — a term the resolution uses 23 times but which is no more clear today than it was in 1973.

“I think the WPR’s drafters would have thought Libya one of the cases that fell within the law,” said John C. Yoo, faculty director of the University of California, Berkeley’s Miller Institute for Global Challenges and the Law.

“What they would have seen in Libya is the type of creeping intervention that could turn into a full-blown war without Congress‘ participation,” he said. “I think that the law is a bad idea and unconstitutional, but its writers would not have thought that firing missiles for more than three months at the leader and armed forces of another sovereign state somehow would fall outside their definition of hostilities.”

Congress had been debating war powers legislation for years before pulling the trigger in 1973, and unforeseen escalations were very much on their minds.

The Vietnam War had cost 58,000 U.S. lives, although it was not a formally declared war. Rather, it resulted from an authorization that the president could use force to respond to a minor skirmish in the Gulf of Tonkin that involved no American casualties.

Story Continues →