{"id":2465,"date":"2011-07-03T19:45:45","date_gmt":"2011-07-03T23:45:45","guid":{"rendered":"https:\/\/thebigpictureandthecloseup.com\/?p=2465"},"modified":"2012-03-09T22:31:26","modified_gmt":"2012-03-10T03:31:26","slug":"hostilities","status":"publish","type":"post","link":"https:\/\/thebigpictureandthecloseup.com\/?p=2465","title":{"rendered":"“Hostilities”"},"content":{"rendered":"

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\u201cHostilities\u201d<\/h2>\n

Published in the Maryland Daily Record July 5, 2011<\/p>\n

There\u2019s been a lot of intelligent comment[1] about Barack Obama and the War Powers Resolution (WPR) as we\u2019ve neared and passed the 60-day deadline set by the WPR for the administration to ask Congress\u2019s permission to continue with our military actions<\/a> against Libya.\u00a0 Original remarks may be hard to come by.\u00a0 And I wrote about this myself three months back<\/a>, shortly after the 60 days began.\u00a0 But this column has made a point of commenting over the years on the saga of the presidency and the legalities of war, and recently there have been a couple of new developments.\u00a0 So it seems best to stay on the story, even at the risk of a little repetition \u2013 of both myself and others.<\/p>\n

If you\u2019ve come in late, though, you should know that the one constant theme in the tale is: Heads I win, tails you lose.\u00a0 This is the mantra chanted over the ages by the Executive to the Legislative whenever the subject is initiating military action. We started with a Constitution that generally left Congress with the power to decide when U.S. forces were committed.\u00a0 We quickly found that presidents actually make these decisions.<\/p>\n

Most of the early inter-branch struggles about this revolved around the definition of \u201cwar.\u201d\u00a0 If it was a war, Congress got to declare it.\u00a0 But the president, acting under Commander-in-Chief powers, got to initiate any military action that was not declared, and the resulting combat operations were dubbed \u201cimperfect war.\u201d<\/a> When it was an imperfect war, the president got to keep his Commander-in-Chief powers, while Congress got to keep nothing.\u00a0 Not surprisingly, the vast preponderance of our dozens of military deployments have been imperfect wars.<\/p>\n

The WPR was born of Congressional frustration with this state of affairs.<\/a> Rep. Clement Zablocki and Sen. Jacob Javits, the lead sponsors, realized that if Congress were to reassert control, it had to take back power over the imperfect wars.\u00a0 The mechanism they hit upon was the 60-day rule: If a president started an imperfect war, he had to get Congressional approval within 60 days or call the thing off.\u00a0 Except the WPR doesn\u2019t talk of \u201cimperfect wars,\u201d which admittedly has a 19th<\/sup> Century-ish ring to it.\u00a0 The WPR speaks instead of \u201chostilities,\u201d and thereby hangs this particular tale.<\/p>\n

Presidents have generally tried to subvert the WPR.\u00a0 Either they have not complied, or, if they have complied, have often done so with a studied bad grace, intimating that their reports to Congress and requests to authorize force were provided not because of the compulsion of the WPR, but on general principle.<\/p>\n

Enter the Obama administration and its military involvement with Libya.\u00a0 As I pointed out three months ago, there was some ambiguity surrounding whether the initial consultation required by the WPR before the beginning of hostilities had taken place.\u00a0 There is no ambiguity surrounding the absence of authorization after 60 days \u2013 if the WPR applies at all.\u00a0 But guess what?\u00a0 Obama claims it doesn\u2019t<\/em> apply at all, because there are no \u201chostilities\u201d at the moment.<\/p>\n

The administration claim was advanced in at least two places: a 32-page White House briefing paper<\/a> and a June 15 letter to Speaker of the House John Boehner<\/a>.\u00a0 The briefing paper acknowledged certain current activities. There have been 10,000 air sorties flown over Libya by NATO forces, it said.\u00a0 However, today only a small number are flown by U.S. planes, and those \u201care limited to the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets.\u201d\u00a0 (We know who those targets are.)\u00a0 Further, \u201cThe United States provides nearly 70 percent of the coalition\u2019s intelligence capabilities and a majority of its refueling assets.\u201d\u00a0 That is, intelligence and refueling for combat sorties.<\/p>\n

And how is suppressing enemy air defense, launching Predator strikes, briefing and gassing up fighters that go out thousands of times a month to bomb Libya not \u201chostilities\u201d?<\/p>\n

Here is the key analysis, from the briefing paper:<\/p>\n

U.S. military operations are distinct from the kind of \u201chostilities\u201d contemplated by the Resolution\u2019s 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.[2]<\/address>\n

Fascinating stuff, to be sure, but I kind of missed the part which demonstrates the lack of \u201chostility\u201d in the existence of a multinational coalition, in a Security Council resolution, in a supporting role, in a design to protect civilians, or in the absence of jeopardy to U.S. forces.\u00a0 Doesn\u2019t it make more sense to say that if our efforts aim at and help achieve things and people being blown up, they constitute hostilities?<\/p>\n

Speaker Boehner certainly thought so, commenting that these explanations don\u2019t pass the straight-face test.<\/a> Note that the American Heritage Dictionary lists as the obviously applicable definition \u201cacts of overt warfare.\u201d<\/a> And what could this be except warfare?\u00a0 Not police work: I doubt there\u2019s a single police force in the world that uses drones to take out bad guys or briefs the pilots of and refuels fighter jets.<\/p>\n

Granted, the WPR doesn\u2019t define \u201chostilities,\u201d but apparently the Office of Legal Counsel thought it understood.\u00a0 According to the New York Times<\/a>, not only did OLC, whose word is generally law within the Executive, advise Obama that U.S. activities in Libya were WPR \u201chostilities,\u201d but so did the top lawyer at the Pentagon.\u00a0 We haven\u2019t seen these opinions, nor the advice of the White House lawyers who reportedly argued to the contrary, so we can\u2019t evaluate them.<\/p>\n

But we can see what the word means to courts applying the word in contexts not fraught with national policy, like insurance, and with other statutes that use the word.\u00a0 There the word denotes situations in which nations are shooting; it\u2019s that simple.[3] Under that apolitical definition, we\u2019re obviously engaged in hostilities.\u00a0 Doesn\u2019t matter that the Libyans can\u2019t shoot back; our drones are shooting at them<\/em>.\u00a0 It shouldn\u2019t matter that we\u2019re only telling some French fighter jockey<\/a> where to fly; if we\u2019re handing out target assignments, we\u2019re engaged in that sortie, irrespective of whose air force does the actual strafing.\u00a0 And that bit about humanitarian motivations: if that matters, then the Civil War wasn\u2019t hostilities either.<\/p>\n

Even if you think it\u2019s a good thing to be trying to unseat Kadafi, you ought to be discouraged by the thinly-veiled mutiny Obama is waging against the law.\u00a0 Me, I had this naive notion that the president was supposed to take care that the laws be faithfully executed<\/a>.\u00a0 Silly moi<\/em>!\u00a0 Nothing faithful about this bit of execution.<\/p>\n

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[1].\u00a0 See, e.g. Conor Friedersdorf\u2019s column in The Atlantic<\/em> here<\/a>.<\/p>\n<\/div>\n

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[2].\u00a0 Briefing paper<\/a> at 25.<\/p>\n<\/div>\n

\n

[3].\u00a0 See, e.g., United States v. Standard Oil of N.J.<\/em> (2d Cir. 1949)<\/a> (\u201chostilities\u201d are \u201cwarlike\u201d activities for purposes of marine insurance); Lord, Day & Lord v. Socialist Republic of Vietnam<\/em> (S.D.N.Y. 2001)<\/a> (\u201chostilities\u201d as used in Foreign Sovereignties Immunities Act end when military action ends, irrespective of formal state of war or diplomatic estrangement); Samuels v. United Seamen\u2019s Service<\/em>, 352 F.Supp. 827 (9th<\/sup> Cir. 1948) (\u201chostilities\u201d for purposes of construction of lease end when shooting stops, not date of surrender); International Dairy Engineering Co. of Asia, Inc. v. American Home Assur. Co.<\/em>, 352 F.Supp. 827 (N.D.Cal. 1970) (flare dropped by a belligerent\u2019s warplane, even if by negligence, was part of \u201chostilities\u201d for purposes of policy exclusion).<\/p>\n

Copyright (c) Jack L. B. Gohn<\/p>\n

The Big Picture Home Page<\/a> | Previous Big Picture Column<\/a> | Next Big Picture Column<\/a><\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Even if you think it\u2019s a good thing to be trying to unseat Kadafi, you ought to be discouraged by the thinly-veiled mutiny Obama is waging against the law. Me, I had this naive notion that the president was supposed to take care that the laws be faithfully executed. Silly moi! Nothing faithful about this bit of execution.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[2841,84,2848,432,2843,2846,2833,2836,2849,2499,2847,2497,2845,2500,780,2839,189,2838,709,2834,2835,2837,2842,2844,2840,434],"class_list":["post-2465","post","type-post","status-publish","format-standard","hentry","category-bigpicture","tag-american-heritage-dictionary","tag-barack-obama","tag-belligerents","tag-clement-zablocki","tag-conor-fridersdorf","tag-foreign-sovereignties-immunities-act","tag-hostilities","tag-imperfect-wars","tag-jacob-javits-consultation-with-congress","tag-john-boehner","tag-lease-conditions","tag-libya","tag-marine-insurance","tag-nato","tag-new-york-times","tag-north-atlantic-treaty-organization","tag-office-of-legal-counsel","tag-prediator-drones","tag-president-barack-obama","tag-rep-clement-zablocki","tag-sen-jacob-javits","tag-spearker-of-the-house-john-boehner","tag-take-care-clause","tag-the-atlantic","tag-united-nations-security-council","tag-war-powers-resolution"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2465","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2465"}],"version-history":[{"count":11,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2465\/revisions"}],"predecessor-version":[{"id":2472,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2465\/revisions\/2472"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2465"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2465"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2465"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}