At least that’s what the White House and their military lawyers are saying:
“We are acting lawfully,” said Harold Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with White House Counsel Robert Bauer.
The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes — although unmanned dronesoperated by the United States periodically fire missiles as well.
They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians.
“We are not saying the president can take the country into war on his own,” Mr. Koh said. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”
It’s a very difficult argument to get your head around. But after a House vote on an amendment to stop funding the Libyan War, a formal letter by the Speaker to conform to the law, and after ten legislators filed a lawsuit against the Obama administration for unlawfully taking the country to war, this is all they could come up with. We’re not technically breaking the law, because in order to violate the War Powers Resolution you have to be at war, and all we’re doing is bombing another country. We’re not engaged in “hostilities” since we’re only…bombing another country. Our aims our limited to the protection of civilians by the legally binding UN Resolution, despite the fact that we have officially changed the war aims to regime change.
The truth of the situation is just cynical. Even when a mostly inept Congress starts to flex its muscles (merely because there is exactly zero political risk), the bloated, expansive powers of the Executive Branch effectively relegate them to obsoletion. This is a war that is being waged in the open, relative to technically secret wars in Pakistan and Yemen, and still no person or group of people has any recourse to address its legality honestly with King Obama. Today’s news is a good sign that initial concerns of a lengthy, extended project of regime change, nation building, and eternal occupation.