Surely the Libyan people would also consider our actions decidedly “hostile.” Al-Qaddafi’s militants have had nearly a hundred US missiles dropped on them. Thousands of targets have been stuck. Numerous buildings have been shattered. And, thousands have been wounded or killed. It is hard to argue that this does not amount to "hostilities." But, Obama claims just that. In a report sent to Congress last week, the Obama Administration says that the Libyan mission falls short of “hostilities” in part because "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."
In other words, because US troops are in little danger, there are no "hostilities." This is a non-sensical reading of the term. Under Obama’s interpretation, as soon as we switch from bombing with piloted fighter jets to sending missiles in drones, we have ceased "hostilities." But there should be little doubt that remote warfare is equally "hostile." Moreover, there is nothing in the common understanding of the word “hostilities” that suggests that both sides in a conflict must be equally at risk. Indeed, by this logic, President Obama could unilaterally decide to drop a nuclear bomb on Tripoli and that would not amount to “hostilities” under the War Powers Resolution.
Furthermore, even if risk to our troops is relevant to whether our actions are “hostile,” the conflict in Libya fails Obama’s test. As the Washington Post revealed this week, troops who fly planes over Libya or serve on ships off of its shores currently receive $225 a month in "imminent danger pay." Under Defense Department regulations, this means that the Pentagon has determined that those service members are “subject to the threat of physical harm or imminent danger because of civil insurrection, civil war, terrorism or wartime conditions.” The conclusion that our troops are in "imminent danger" is inconsistent with the conclusion that we are not involved in "hostilities," even under President Obama’s convoluted definition of the term.
But how could the President come up with such a preposterous reading of the plain language of the War Powers Resolution? Surely the Department of Justice would have advised him that this interpretation flies in the face of common sense?
Actually it did. This weekend, the New York Times revealed that Attorney General Eric Holder and Acting Head of the Office of Legal Counsel (OLC) Caroline Krass advised the President that the United States is engaged in "hostilities" in Libya which require him to gain congressional consent under the War Powers Resolution. For nearly 80 years, OLC, an elite division of the Justice Department, has been the ultimate authority for providing detached legal advice to the President. As Eric Holder explained, OLC's advice is "the best opinions of probably the best lawyers in the [Justice Department]...It will not be a political process, it will be one based solely on our interpretation of the law." The President is not bound by OLC but it is extremely rare for a President to reject its legal advice and it is virtually unprecedented for him to do so on a question of statutory interpretation.
But this time, the Obama administration flouted OLC and orchestrated a results-based process. Once it was clear that OLC thought the President was legally bound to obtain congressional authority in Libya, the White House declined to ask it for a formal legal opinion. Instead, White House Counsel Robert F. Bauer invited lawyers from other departments to support his view (and presumably that of the President) that congressional consent was unnecessary. Such an outcome-based approach is bound to result in lawlessness since a President will almost always be able to find someone in his administration to tell him what he wants to hear.
It is especially striking that President Obama would go to such lengths to circumvent Congress's role on military matters, given his campaign rhetoric to the contrary. As a candidate, Obama said, "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Military action should be "authorized and supported by the Legislative branch" and it is always best to have "the informed consent of Congress prior to any military action."
So much for all that. Under Obama's strained reading of the law, Congress's war power has essentially been nullified.
Stephanie Hessler is an adjunct fellow at the Manhattan Institute. She served as a national security and constitutional lawyer for the Senate Judiciary Committee.