The Hill - The White House argued President Obama has acted consistently with the War Powers Resolution in using U.S. military forces in Libya without first asking for congressional approval.
The administration’s argument, made in a more than 30-page report and legal analysis sent to congressional leaders, is that Obama is in compliance with the resolution because the U.S. does not have a lead role in the Libyan operation, which is being carried out by NATO.
Senior administration officials said that the president is not challenging the constitutionality of the resolution by not requesting approval from Congress, but instead maintained that because the U.S. is acting in a support role with no troops on the ground, no war authorization is necessary.
The U.S. is “not engaged in any of the activities that typically over the years in war powers analysis is considered to constitute hostilities within the meaning of the statute,” White House general counsel Bob Bauer explained.
“We’re not engaged in sustained fighting,” Bauer said. “There’s been no exchange of fire with hostile forces. We don’t have troops on the ground. We don’t risk casualties to those troops. None of the factors, frankly, speaking more broadly, has risked the sort of escalation that Congress was concerned would impinge on its war-making power.”. . .
“Look, we're at war. There's already been $750 million spent,” [Dennis] Kucinich said. “Whether there are boots on the ground or not doesn't really get into the question of whether or not the president had the ability [to intervene] in the first place.
“It's a constitutional issue here, and it can't be danced around at all.”
“It’s the law,” Rep. John Conyers Jr. (Mich.), the senior Democrat on the Judiciary Committee, said in a statement. “The president cannot unilaterally take the country to war.”
And why Obama is lying about this
David Swanson - The arguments made to "legalize" war, torture, warrantless spying, and other crimes by John Yoo and Jay Bybee and their gang are looking rational, well-reasoned, and impeccably researched in comparison with Obama's latest "legalization" of the Libya War.
Whatever the president's "foreign affairs powers" may be, they do not, under the U.S. Constitution, include the power to launch "military operations" or "hostilities" or "wars." Nor has the distinction between "military operations" that involve what ordinary humans call warfare (blowing up buildings with missiles) and "hostilities" that qualify for regulation under the War Powers Resolution been previously established. This distinction is as crazy as any that have come out of U.S. government lawyers in the past.
The War Powers Resolution forbids unconstitutional wars unless the United States is attacked. But even ignoring that fact, as is the custom, the Resolution says right at the top:
"It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations."
Anything from imminent involvement in hostilities to hostilities is covered. There doesn't seem to be a gap left through which to exclude bombing people's homes in a non-hostile manner with non-combat troops as part of an overseas contingency operation.
Congresswoman Lynn Woolsey remarks: "To say that our aggressive bombing of Libya does not rise to the level of 'hostilities' flies in the face of common sense and is an insult to the intelligence of the American people."
Further down, the same resolution makes clear:
"For purposes of this joint resolution, the term 'introduction of United States Armed Forces' includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities."
So, the "constrained and supporting role in a multinational coalition" is completely irrelevant, and would be even if it were true that a UN resolution was being adhered to.
The Obama report to Congress spends half its time claiming that the United States is not part of the NATO operation in any major way, and the other half warning that the NATO operation would collapse without the United States:
"If the United States military were to cease its participation in the NATO operation, it would seriously degrade the coalition's ability to execute and sustain its operation designed to protect Libyan civilians and to enforce the no-fly zone and the arms embargo, as authorized under UNSCR 1973. Cessation of U.S. military activities in support of OUP would also significantly increase the level of risk for the remaining Allied and coalition forces conducting the operation, which in turn would likely lead to the withdrawal of participation in the operation."
The "limited nature, scope and duration of the anticipated actions" is irrelevant. The War Powers Act specifically sets a limit of 60 days, which has passed. Moreover, not that it matters legally, but the House resolution to which this report was a response asked for some information that the report does not provide, including:
"The anticipated scope and duration of continued United States military involvement in support of NATO activities regarding Libya."
The report says the duration is limited, but that merely suggests it's not infinite.
I have my doubts even about that claim.
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