Move Along, Folks, No “Hostilities” Here

On Tuesday, Speaker John Boehner wrote a letter to the president stating that in a few more days, his administration “will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.”  The Speaker went on to say that in light of the un-forthcoming-ness of the White House,

the House is left to conclude that you have made one of two determinations: either you have concluded the War Powers Resolution does not apply to the mission in Libya, or you have determined the War Powers Resolution is contrary to the Constitution.  The House, and the American people whom we represent, deserve to know the determination you have made. 

Therefore, on behalf of the institution and the American people, I must ask you the following questions:  Have you or your Administration conducted the legal analysis to justify your position as to whether your Administration views itself to be in compliance with the War Powers Resolution so that it may continue current operations, absent formal Congressional support or authorization, once the 90-day mark is reached?

Yesterday came the Obama administration’s answer, a 32-page document titled “United States Activities in Libya.”  It contains just one paragraph, on page 25, supplying the “legal analysis” that Speaker Boehner requested:

Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actions, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad. The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision. 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 that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. 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.

Yep, that’s all we get.  The Libyan operation is “consistent with the War Powers Resolution,” which governs the use of American military forces in “hostilities” abroad–because our forces are not currently engaged in “hostilities”!  This will come as a surprise to the members of our armed forces who (according to the same report), in their “constrained and supporting role in a multinational coalition,” have flown more than 2,500 sorties over Libya, and continue to fly about a quarter of all sorties to this day; and who are “providing unique assets and capabilities . . . such as suppression of enemy air defense (SEAD); unmanned aerial systems; aerial refueling; and intelligence, surveillance, and reconnaissance (ISR) support,” all of which enable the NATO operation’s commander to “find, fix, track, target, and destroy regime forces threatening and attacking civilians and civilian populated areas.”  But no, we’re not involved in “hostilities”!  Turns out that the authors of the WPR, careful in their interpretive guidance, neglected to supply a definition of the word “hostilities.”  I suppose they thought that everyone understood the word applied when you’re shooting at someone.

I agree with Rich Lowry’s column from last week–that the War Powers Resolution is a constitutional mess.  (The only joke that’s bigger is the idea that courts can settle the issues here, as Dennis Kucinich and some of his colleagues suppose.)  Despite disclaimers to the contrary, it effectively authorizes executive military actions that the Constitution does not warrant.  And it unconstitutionally hems in executive power to use military force that the Constitution does warrant.  So it fails constitutionally in two directions–a rare feat.  But the Obama administration wants to eat its cake and have it–to flout the WPR and still claim its actions are “consistent” with it.

Leave aside the WPR.  The opening sentence of the paragraph quoted above makes a risible constitutional claim.  Somehow, merely because the president asserts “important U.S. interests,” his power as commander in chief and his “foreign affairs powers” are fully engaged in Libya.  But a question of constitutional authority cannot be settled by the officeholder’s mere claim that his employment of power is important to him.  And the case is not made stronger by the additional claim that the actions undertaken are of “limited nature, scope and duration.”  If it’s really important, it could be a total war of indefinite scope and duration, couldn’t it?  The Obama administration’s constitutional argument amounts to saying “the employment of American military force overseas, by unilateral executive decision, is constitutionally warranted when the president decides that a really important objective is served by a really limited use of military force.”  The WPR simply provides the punchline to this routine: “Oh yeah, in hostilities that are not really hostilities!”

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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