U.S. Libya intervention: Legally and constitutionally, Obama is on firm ground.

The law, lawyers, and the court.
June 29 2011 5:11 PM

Bomb Away, Mr. President

Legally and constitutionally, Obama's Libya policy is on firm ground.

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Over the next few weeks, Obama handed off the Libya mission to NATO and slashed the number of American sorties. As a result, the president now claims that American air raids can continue indefinitely, notwithstanding yet another section of the War Powers Act that requires that certain presidential military initiatives end within 60 days (with an additional 30-day grace period if an earlier ending would imperil troop safety).

Therein lies the rub. More than 90 days have elapsed since the Libya mission began, and Congress has not passed a law authorizing the mission or extending the 90-day clock. But the clock starts to tick only when troops have been "introduced into hostilities," and this statutory phrase is hardly self-defining. True, American planes and drones are dropping bombs. But they are not taking fire. There are no American body bags. American forces are arguably not so much "into" hostilities as "above" them.

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The War Powers Resolution itself, in the very subsection setting out the 60-90 day clock, emphasizes "the safety of United States Armed Forces." Shortly after the resolution was enacted, a key executive-branch document (PDF) defined the "into hostilities" phrase as involving situations "in which there is a serious risk from hostile fire to the safety of United States forces."

Also, the WPR's clock makes more sense in a classic Vietnam-style ground war—the context in which the act arose. The act is silent about whether a president may ever reinitiate hostilities on, say, Day 93—perhaps in response to a fresh provocation—after withdrawing on Day 89. In a typical ground-troops operation, this sort of complete cessation and quick renewal of hostilities is hard to imagine. By contrast, in the kind of nimble multilateral air operation over Libya, the basic premises of the law are less applicable. U.S. planes can leave enemy airspace in a matter of minutes; other coalition partners can carry on strikes for several days, and then U.S. planes could re-enter—all in strict compliance with the letter of the law.

The ambiguities and oddities of the War Powers Act invite a second look at the Constitution, whose basic vision the law purports to implement. Interestingly enough, the Constitution distinguishes between armies and navies, and regulates armies more strictly. (For example, army appropriations must be re-voted every two years; not so for navy appropriations.) This distinction exists because the Framers believed that armies posed a greater threat to American lives and liberty than did navies. Today, the air power is likewise less of a threat to American lives and limbs.

Of course, there are non-American lives and limbs at stake in Libya as well, and as diplomat-in-chief, the president is well-positioned to respond to world opinion about our Libya mission. Obama's daily duties require him to keep close tabs on Cairo, Egypt, as well as Cairo, Illinois. Is the same true of House Speaker John Boehner? Because the Libya mission poses little threat to Americans, one of the central purposes of the War Powers Resolution—to prevent Vietnam-style risks to Americans unless America's elected legislators have specifically approved these risks—is not implicated.

Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.

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