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'Full-Blown Hostilities': Will Libya Raise the Bar on the War Powers Act?

Friday, June 17, 2011

Lawmakers on Capitol Hill are questioning the constitutionality of U.S. military involvement in Libya, providing yet another case study in the muddled logic and language of what constitutes an American war.

On Wednesday, ten legislators filed a lawsuit against the Obama administration alleging that operations in Libya were illegal because Congress had not given authorization pursuant to the War Powers Act. Presidents get 60 days to engage armed forces in conflict before continued fighting requires congressional approval. It's been three months since President Obama began the Libya intervention, and Congress hasn't passed a thing.

The Obama administration fired back with a 38-page report: Libyan engagement has not yet come to "full-blown hostilities," so the War Powers Act and its 60-day deadline doesn't apply. Congress? We don't need no stinking Congress.

Notice that we're running out of things to call our military actions in Libya. Intervention. Engagement. Involvement. Operations. If firing missiles at a foreign nation doesn't constitute a war, or "full-blown hostilities," what does? According to the administration, it's not until active fire is regularly exchanged with Libyan forces and U.S. troops are on the ground that the War Powers Act comes into play.

These semantic gymnastics are nothing new.

Desert Storm combat operations began on January 16th, 1991—four days after Congress passed the Authorization for Use of Military Force Against Iraq Resolution of 1991, but five months after President George H.W. Bush began deploying troops to the region. By the time Congress authorized military operations, there were over half a million U.S. soldiers in the Persian Gulf.

Talk about grey area. Granted, they weren't shooting until Congress said so—but as president, you don't send 500,000 soldiers to the Middle East just to sit on their hands. Does combat begin only once the first bullet flies? Are military moves that make war not only more likely, but perhaps inevitable, not subject to Congressional approval? If we're not going to call it "war" anymore (and we haven't formally declared war since Pearl Harbor), then what's the word for what we do? How do we know it's begun, and how do we know it's over?

Legislation is the most sure-fire way: even though war was never formally declared in Vietnam, or Iraq, or Afghanistan, there was legislation (however vague and open-ended) accompanying military action.

This has not been the case with Libya. It wasn't the case with Bosnia or Korea, either. In these instances, military operations were granted legitimacy by United Nations Security Council resolutions, but not Congress.

That's what has people so upset. Generally, UN resolutions do little more than authorize member nations to take action. But one would expect those actions to be taken within each member nation's legal and constitutional framework. Without Congress putting it in writing, it appears that military action—whether it's actively killing people, or just conducting surveillance and providing non-combat support for coalition forces—is a unilateral decision made by the President. Americans tend to dislike unilateral decisions.

In 2002, then-Senator Barack Obama took issue with the joint resolution allowing military operations against Iraq. He feared it would give "carte blanche to the administration for a doctrine of preemptive strikes that I'm not sure sets a good precedent."

The Obama administration could be setting its own precedent now. Should the constitutionality of "Operation Odyssey Dawn" be upheld, the U.S. would have expanded authority to conduct any operation wherever it sees fit without approval from the legislative branch, so long as "full-blown hostilities" are avoided.

But according to the White House report on U.S. actions in Libya, there are still air strikes and we're still contributing assets to other coalition forces that are engaged in more aggressive behavior. In addition to defining "full-blown hostilities," we may also have to define the difference between fighting a war and financing one.

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Comments [1]

Harrison Bergeron from Fair lawn NJ

It's pretty clear what the Founders intention was. First the congress calls up the military. Then the president directs them. But we've got too many lawyers in government and they manipulate words to whatever ends they please.

Article I. Section. 8.
The Congress shall have Power ...
To define and punish ... Offences against the Law of Nations;
To declare War ...
To raise and support Armies ...
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;

Article II. Section 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States ...

Jun. 17 2011 11:46 PM

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