Advancing a Free Society

The Administration’s Libya Case Further Weakened

Tuesday, June 21, 2011

Thom Shanker of the New York Times is a terrific journalist; I’ve long admired his coverage of the Defense Department.  He asks interesting questions, figures out what information would prove or disprove what officials are saying, and is unfailingly fair to the soldiers, sailors, airmen and Marines doing our country’s dangerous work.

A demonstration of Thom’s talents is on display in the Times today, in an article he wrote with Charlie Savage.  The article makes clear just how flimsy is the White House’s claim that our military operations in Libya do not constitute “hostilities.”

The President’s case -- ably dissected by Jack Goldsmith, Richard Epstein, and other Hoover scholars and practicioners of the law -- is that because we have no troops on the ground, are conducting strikes remotely, and are only supporting forces in an effort led by other countries, our involvement does not constitute being engaged in “hostilities,” and the requirement for Congressional authorization established in the War Powers Act is therefore not relevant.

The White House’s justification sent to Congress last week states that “American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator.”  Thom’s reporting has discovered that American warplanes have conducted more than 60 attacks on Libyan air defense since leadership of the operation was handed over to NATO, and as recently as May 20th.  Armed drones have carried out another 30 strikes.

Moreover, he raises an interesting point I had not seen elsewhere: that in American military doctrine, the act of lighting up air defenses is considered a hostile act.  That is, from our military’s perspective, we are engaged in hostilities if an enemy turns on their radars to track our aircraft.

Whatever one thinks of the constitutionality of the War Powers Act, the President’s novel legal reasoning just isn’t supported by the military operations we are carrying out in Libya.

(photo credit: Charles McCain)