Libya War is Legal, Because Technically We’re Not Involved

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.

  • liberranter

    It’s a very difficult argument to get your head around.

    But since no one in Amerika thinks anymore, that's not something anyone is concerned with.

  • John Poole

    From someone who was in Libya last summer (my son was an ASRO at the embassy in Tripoli) it is not surprising that Obama can claim that we aren't really at war with Libya since their forces are incapable of responding in a lethal manner. So if you have the upper hand and are out of harm's way (except by an equipment failure of a bombing air vehicle) you aren't technically at war (risk)? So this is where 235 years of empire has ended? We aren't illegally murdering anyone since they don't have the means of striking back.

  • skulz fontaine

    Dang, and I thought the hubris of Bushco was off the hook.

  • Jamal

    The Bush attorneys also were arguing that torture in Iraq is legal as long as they can get information out of a a "terrorist…, then question was: how can you prove that these people prisoned by US and NATO are terrorists..,so the argument didn't worked out.., by torturing a person to almost death he or she will confess to anything you want.., so that didn't worked out.., but according to international law the torture itself is illegal and then come the Abu Gharib prison and all that photos.., here Obama is trying to do the same law trickery on people.., as long as it is US air force or navy or as long as "made in USA" written on bombs and as long as US military personnel loading the bombs then Libya been bombed and there is a war conducted by US militarism regime. Helping NATO is also a act of war.., NATO is part of US militarism regime and US is part of NATO. Obama is simply trying to help his Tyrants friends in Middle East.., and in EU his Mafia Italian friends and in England the Bank of England and monarchism there. Democracy… what democracy.., these people would even question the wording, its principals and history that comes with it..,

  • Ricardus

    So they say that there's no way that Libya can retaliate so it's not war. I thought Libya had this thing for bombing airliners out of the sky? Obviously they don't really believe that.

  • dink

    More double talk pseudo-legal crap talk to justify the unlawful. Remember, Mr Obama was a constitutional lawyer. Its people going into law in order to avoid the law. Keep the pressure up on LIbya.

    • dink

      excuse me. Keep the pressure up on (the unlawfulness and unconstitutionality on the illegal aggression against) Libya

  • Pingback: NATO Pilots Face High Risks in Libya « Antiwar.com Blog()

  • John_Muhammad

    So a war isn't really a war unless we say it's a war- but since Congress hasn't declared war…. we can't call it a war.

    Somehow I don't think a bomb dropped on a crowded playground has any idea if it's being dropped legally or illegally, and I suspect the children don't really care. You can bet any surviving brothers or sisters or parents care, though- add a few more to the ever-growing number of those we've turned into blood enemies.

  • the lion

    America this is what you get for failing to Prosecute Bush for his illegal activities!

    What will the next President do, use Nuclear weapons on another country!

    • eric siverson

      Clinton and Bush should be prosecuted for being international criminals , Obama at least got UN approval but failed to get congressional approvual . Clinton and Bush would serve their time in a foreign country and be tried by the Hague . Obama should be tried here and would serve his time in the United States . Punishing these guys would be a lot more productive towards the interest of peace , than to try to make a criminal out of Manning becuase he tried to help us learn about whats been going on .

  • Andrewp111

    Congress cannot cut off funding FY11 unless it gets a 2/3 vote in each house to override a veto. With the Democrats desperate for Obama to win a second term at any cost, this will not happen, and Obama knows it.

    And the Administration's own deadline of Sept. 27 is right before FY12 starts. If they are out by then, then any amendment to the FY12 budget cutting off funding is moot.

    Col. Gadhafi knows that he only has to hang on until Oct 1.

    Other operations against Al Qaida anywhere on earth (Yemen, Pakistan, Afghanistan, etc…) were already authorized by Congress 10 years ago, and are irrelevant to this discussion.

    • Sam

      Shut up faschist.

  • Pingback: John Yoo is to Guantanamo What Harold Koh is to Libya « Antiwar.com Blog()

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