- 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.

Even as they were debating and passing the final House-Senate compromise, and then a month later voting to override President Nixon’s veto, they were watching the Yom Kippur war between Israel and the Arab states smoldering in the Middle East.

They also were familiar with humanitarian and limited military operations. During the floor debate in 1973, some opponents worried that war powers restrictions could have hampered presidents’ efforts during the Berlin crisis of 1961 and a rescue mission in Congo in 1964 that involved the U.S. in a supporting role.

The resolution was contentious from the start. Most subsequent administrations have called it an unconstitutional infringement of the president’s commander-in-chief powers, though Mr. Chesney said the Justice Department’s Office of Legal Counsel under President Carter issued an opinion accepting its constitutionality.

The Obama administration said last week that the president is not challenging the law’s constitutionality.

The War Powers Resolution isn’t the only danger to Mr. Obama’s deployment. Just as Congress eventually ended the Vietnam conflict by cutting off funding, so lawmakers today are exploring that option.

A liberal Democrat and a conservative Republican have said they will offer amendments seeking to defund the Libya operation as part of the House’s debate next week on the annual defense spending bill.

“I read both the classified and unclassified versions of President Obama’s response to Congress, and he failed to articulate a national security imperative in either one,” said Rep. Joseph J. Heck, Nevada Republican and a freshman who sits on the House Permanent Select Committee on Intelligence. “Without a clear U.S. national security imperative for our military action in Libya, it is Congress‘ responsibility to prevent additional defense spending for our operations there.”

Rep. Dennis J. Kucinich, Ohio Democrat, has said he will offer his own defunding amendment.

But in a letter to Congress, many of the neoconservative architects of President George W. Bush’s foreign policy said that while Mr. Obama has failed to justify the operation, cutting off funding would be a mistake. They said the U.S. should do more to remove Col. Gadhafi.

“The United States should be leading in this effort, not trailing behind our allies,” said the letter-writers, who included former Bush administration officials Karl Rove, Liz Cheney and Paul Wolfowitz.

“We should be doing more to help the Libyan opposition, which deserves our support. We should not be allowing ourselves to be held hostage to U.N. Security Council resolutions and irresolute allies,” they said.

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