Libya war may be justified, but that doesn’t make it legal

David Meyers Former White House Staffer
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In his press conference yesterday, President Obama essentially argued that Americans shouldn’t question his interpretation of the War Powers Resolution because we’re helping “a lot of people against one of the worst tyrants in the world — somebody who nobody should want to defend.”

No one is defending Muammar Gaddafi. As I’ve written here previously, Gaddafi is a despicable tyrant who deserves the justice I hope he soon receives.

But a worthy goal doesn’t mean President Obama can violate the War Powers Resolution and not be held accountable.

The War Powers Resolution requires the president to inform Congress when Armed Forces are introduced “into hostilities or into situations where imminent involvement in hostilities is clearly indicated” and to end all actions within 60 days unless Congress extends this period or declares war.

Sixty days have come and gone in Libya, Congress has not given its approval, but the United States is still participating in NATO’s Libya intervention. You don’t need a law degree to realize that this seems to be a clear violation of the War Powers Resolution.

President Obama is evading the law by arguing that the United States’s actions in Libya no longer amount to hostilities. “Hostilities” is defined in the Merriam-Webster Dictionary as “overt acts of warfare” or acts “of or relating to an enemy.” But by any definition of the word, the United States is engaged in hostilities in Libya.

The United States is participating in a NATO coalition that has been aggressively bombing targets in Libya and using force to maintain an arms embargo and no-fly zone. Furthermore, France and the United Kingdom have recently admitted to providing weapons and equipment to Libyan rebels. It’s hard to object to these policies. But it’s also hard to argue they aren’t hostilities.

President Obama says that because there are no U.S. troops on the ground, because the U.S. military is no longer directly engaged in the “sustained fighting,” and because the U.S. doesn’t risk suffering losses, the War Powers Resolution doesn’t apply.

At the outset, the U.S. led the fighting in Libya. But since then (and probably anticipating a fight over the War Powers Resolution), the U.S. involvement has been limited to providing the NATO coalition with intelligence resources, refueling capabilities, search and rescue efforts, equipment movements and predator drone strikes. According to the White House, this means we aren’t engaged in hostilities.

If I told a burglar where to find unlocked houses, filled his car with gas, helped him move his burglary tools and shot at the police while he was escaping, would President Obama argue that I was not really participating in the robbery?

America is engaged in hostilities in Libya.

To begin with, U.S. predator drone strikes mean that our Armed Forces are directly engaged in hostilities. These drones are U.S. military property and are operated by U.S. service members. When the drones fire rockets into Libya over a sustained period of time, the U.S. is engaged in “sustained fighting.”

And while we may no longer be directly involved in the bombings, no-fly zones or arming of Libyan rebels, there’s a strong argument that we are legally responsible for the actions of the NATO coalition. We are aiders, facilitators and abettors, and without our help, NATO would have a difficult time engaging in hostilities in Libya.

Maybe this is why the Department of Justice’s Office of Legal Counsel told the president he would be violating the War Powers Resolution if he didn’t receive Congressional authorization to continue the mission in Libya.

In its report to Congress, the White House boasted that Gaddafi has suffered “numerous defeats” and that “cities and towns across Libya have been liberated from brutal sieges.” But all of these victories were achieved by NATO-led hostilities that were facilitated by the U.S. military and included strikes from U.S. drones.

President Obama can’t have it both ways. How can we take credit for the success of acts of warfare and then claim we aren’t truly participating in them?

President Obama also argued in his press conference that the War Powers Resolution shouldn’t apply because the law was primarily intended for large conflicts like Vietnam. But the text of the law (including its “Purpose and Policy” section) makes no mention of Vietnam. And legislative history is no match for the plain meaning of the text.

The law requires the president to obtain Congressional authorization after the 60 days has expired. Period.

So what happens now? Any lawsuit to force Obama to comply with the War Powers Resolution will likely be dismissed under the “political question” doctrine. And Congress is unlikely to cut off funding. So the president will get his way by default.

But that doesn’t make it right. President Obama needs to obtain Congressional approval, end the mission or argue that the War Powers Resolution is unconstitutional. Continuing to argue that the U.S. isn’t engaged in hostilities just won’t do.

David Meyers served in the White House from 2006 to 2009, and later in the United States Senate. He is currently pursuing a law degree at Columbia University.