Libyan Hostilities?

Do U.S. operations in Libya amount to “hostilities” as defined by the War Powers Act? That is the big question among national security legal experts right now. The divide between the legislative and executive branches of America’s federal government over the War Powers Act of 1973 has always been stark. And the judicial branch (which is supposed to mediate disputes such as this) has distinctly avoided weighing in on the matter. The law was passed in 1973 by a supermajority in both houses of Congress, overriding President Nixon’s veto. The law basically says that the President is only authorized to initiate the armed forces into “hostilities” if one of three things has occurred: 1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. Most President’s, detesting the law’s constraints on their power, have openly declared the law to be unconstitutional. They cite Article II, Section 2 of the constitution which simply states that the President is Commander and Chief of the armed forces.

Congress has been clamoring for an explanation from the administration of its Libyan operations. On Wednesday they got it, with the Obama Administration arguing that nothing it was doing in Libya constituted “hostilities.” The lack of hostilities makes the War Powers Act totally inapplicable. The administration sent a 30-page memo to Congress, 14 pages of which are unclassified. I find almost every argument the administration makes in the memo compelling. Most of them are not new; the memo repeats the same arguments the administration has made since March, and they are well-founded.

The memo starts with background, and quickly refutes one of the most frequent objections, “well if we go into Libya, why not Bahrain, Syria, or Cote D’Ivoire?” The administration’s response is that Libya was unique: “In this particular country – Libya – at this particular moment, we were faced with the prospect of violence on a horrific scale. We had a unique ability to stop that violence: an international mandate for action, a broad coalition prepared to join us, the support of Arab countries, and a plea for help from the Libyan people themselves. We also had the ability to stop Qaddafi’s forces in their tracks without putting American troops on the ground.” One or more of these conditions was not satisfied in the other countries.

Since coming into office, President Obama has projected a coherent vision of engagement with the world based on strengthening the international rule of law. The Libyan intervention falls right in line with this tenet of his. The international principle of the “responsibility to protect” was invoked and reinforced. The intervention had a wide mandate from the United Nations. Qadhafi’s brutal violence against his own population has been catalogued by a United Nations Commission of Inquiry and has resulted in a request for arrest warrants by the Prosecutor of the International Criminal Court for crimes against humanity. Standing idly by would have undermined the United States’ credibility as well as that of the international community’s role in preventing mass atrocities from occurring.

The administration’s memo also explains that America’s role is truly quite limited. The administration makes a convincing argument that the U.S. is not engaged in “hostilities” as the War Powers Act intends. Since March 31, when the U.S. handed off the primary command and control duties to NATO, America’s role has been limited to “electronic warfare assistance; refueling; strategic lift capability, personnel recovery and search and rescue, intelligence, surveillance, and reconnaissance support; and an alert strike package.” Since March 31, 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. All 20 ships enforcing the arms embargo are European or Canadian. The United States provides nearly 70 percent of the coalition’s intelligence capabilities and a majority of its refueling assets, enabling coalition aircraft to stay in the air longer and undertake more strikes. The US also lends its unique air strike capabilities – unmanned Predator UAVs – to the mission. So we perform intelligence, resupply non-US aircraft, and fly drones. That ain’t a whole lot. The Pentagon reports that this will cost $1.1 billion by September, but it has vowed not to seek off-budget appropriations (as was repeatedly necessary for Afghanistan and Iraq).

My one problem with the administration’s unclassified policy memo is the stated time line of operations. At the June 8 meeting of NATO Defense Ministers, NATO reaffirmed the April 14th statement of Foreign Ministers that operations would continue:

“until all attacks and threats against civilians and civilian populated areas have stopped… until the regime has pulled back all its forces — including its snipers and its mercenaries — away from civilian centers and back to their bases. And until there is a credible and verifiable ceasefire, paving the way for a genuine political transition and respecting the legitimate aspirations of the people of Libya.”

Although we’re not doing much in Libya’s airspace, and American lives are not at risk, this is a virtually open-ended mandate. Qadhafi has shown his resolve, he is not pulling back until the rebels and coalition forces push him back. Due to the highly tribalized and fragmented society that exists in Libya, a ceasefire that will “pave the way for a genuine political transition” will take years. $1 billion is not much money to the Pentagon or the federal government, but if you extend that out for a couple years and consider other pressing, domestic spending priorities, the cost becomes a significant problem.

Are America’s Libyan operations illegal? No. Will the lawsuit filed by Rep. Kucinich et al. fail? Yes. Is it a problem that national security law at the highest levels is ambiguous? Absolutely. My personal opinion is that foreign policy decision-making should not be democratic. But at the same time there must be real transparency and accountability for the decisions which the President and his national security advisers make.