Search This Blog

Tuesday, June 21, 2011

"Hostilities" and the War Powers Act -- Update

The Washington Post reports:

The White House has officially declared that what’s happening in Libya is not “hostilities.”

But at the Pentagon, officials have decided it’s unsafe enough there to give troops extra pay for serving in “imminent danger.”

The Defense Department decided in April to pay an extra $225 a month in “imminent danger pay” to service members who fly planes over Libya or serve on ships within 110 nautical miles of its shores.

That means the Pentagon has decided that troops in those places are “subject to the threat of physical harm or imminent danger because of civil insurrection, civil war, terrorism or wartime conditions.” There are no U.S. ground troops in Libya.

President Obama declared last week that the three-month-old Libyan campaign should not be considered “hostilities.” That word is important, because it’s used in the 1973 War Powers Resolution: Presidents must obtain congressional authorization within a certain period after sending U.S. forces “into hostilities.”

Obama’s reasoning was that he did not need that authorization because U.S. forces were playing a largely supportive and logistical role, and because Libyan defenses are so battered they pose little danger. U.S. drones are still carrying out some strikes against Libyan targets.

Overall, the White House reasoned, “U.S. military operations [in Libya] are distinct from the kind of ‘hostilities’ contemplated by the resolution.”

On Monday, a spokesman for House Speaker John A. Boehner (R-Ohio) said the Pentagon’s decision was further proof that Obama’s logic is flawed.

“If members of our armed forces involved in the military action in Libya are getting ‘imminent danger’ pay, it’s one more indication that the White House claim that we aren’t involved in ‘hostilities’ just doesn’t pass the straight-face test,” said Boehner spokesman Michael Steel.

Asked Monday whether the White House finding contradicted the Pentagon’s, an Obama spokesman declined to comment.

The New York Times reports:

Since the United States handed control of the air war in Libya to NATO in early April, American warplanes have struck at Libyan air defenses about 60 times, and remotely operated drones have fired missiles at Libyan forces about 30 times, according to military officials.

The most recent strike from a piloted United States aircraft was on Saturday, and the most recent strike from an American drone was on Wednesday, the officials said.

While the Obama administration has regularly acknowledged that American forces have continued to take part in some of the strike sorties, few details about their scope and frequency have been made public.

The unclassified portion of material about Libya that the White House sent to Congress last week, for example, said “American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator” drones, but included no numbers for such strikes.

The disclosure of such details could add texture to an unfolding debate about the merits of the Obama administration’s legal argument that it does not need Congressional authorization to continue the mission because United States forces are not engaged in “hostilities” within the meaning of the War Powers Resolution.

Michael Isikoff writes at

The White House bypassed the administration’s own written guidelines for resolving major legal disputes when it overruled the Justice Department’s advice that the president seek congressional approval for U.S. military operations in Libya, according to some legal scholars.

The disclosure over the weekend that President Barack Obama rejected the advice of senior Justice Department legal advisers — including Attorney General Eric Holder — has drawn sharp congressional criticism in recent days, ranging from House Speaker John Boehner to liberal Democrats such as Rep. Jerrold Nadler of New York.

It is also provoking debate among legal scholars, some of whom told NBC News that they were unaware of any recent precedent for the way the White House reached its legal conclusions about Libya. One top former legal adviser to Obama, Dawn Johnsen, called the accounts of the White House's handling of the matter "disturbing."

"There may be a precedent for this, but I can't think of one," said Robert Chesney, a University of Texas law professor who specializes in national security law. "This is not the way the process is supposed to work."

For decades, Chesney and other legal scholars said, legal and constitutional questions within the government have been resolved by the Justice Department's Office of Legal Counsel (OLC). Just last year, a six-page Justice Department memo described OLC's mission as providing "controlling advice" to executive branch officials on questions of law.

The memo spelled out how the office's decisions were supposed to be reached: After receiving input from agencies throughout the government, OLC lawyers would provide "principled" legal analysis to executive branch officials, not opinions "designed merely to advance the policy preferences of the president or other officials."