Three somewhat broader thoughts in addition to this morning’s analysis:
- The Administration’s WPR argument carves out from the scope of the WPR attacks from a safe distance. This is a potentially large carve-out, for U.S.-style warfare is becoming dominated by attacks from a safe distance – drones, precision-guided missiles, cyber-operations, and the like. The Administration might try to narrow the carve-out by arguing that attacks from a distance that are larger-scale than the ones in Libya – shock and awe type attacks, for example? – would constitute “hostilities.” If that is the argument – I see it nowhere clearly stated, but it might be the argument – then I do not understand why the Administration emphasizes that no U.S. troops are in danger from long-distance attacks and that Congress can easily force a troop withdrawal. If intensity and scale are the key limits on safe-distance attacks, then arguments about danger and withdrawal are irrelevant, because those arguments would apply equally to large and small scale safe-distance attacks. Moreover, even if intensity and scale are key, I do not know where or how the administration draws the line. One relatively well-understood line is “armed attack” under international law. That is a minimal line suggested by the 1980 OLC opinion. But if that is the line, then the Libya action would count as “hostilities” because it is an armed attack.