The White House acknowledged late Friday that the Pentagon’s top lawyer and the Attorney General believe that the U.S.’s military actions against Libya amount to “hostilities,” a position that contravenes a theory espoused by the administration in a white paper sent to Congress Thursday.
Still, the White House insists that the Justice Department and the Defense Department believe that President Obama’s view is a reasonable and legitimate interpretation of the War Powers Act.
A senior administration official confirmed the dispute Friday night after The New York Times reported that Defense Department General Counsel Jeh Johnson and Caroline Krass, the acting head of the Office of Legal Counsel at the Department of Justice, both concluded that the scope of the U.S.’s actions in Libya do amount to the definition of “hostilities” envisioned by the War Powers Act.
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The Times reported that President Obama, his chief lawyer, Robert Bauer, and the State Department legal adviser, Harold Koh, thought that “hostilities” did not apply to the conflict. This is because no entity is firing at U.S. troops, troops are not in any danger, and the U.S. is simply complying with a United Nations resolution. If the action in Libya did trigger the War Powers Act, Obama would have been required to seek permission from Congress a month ago. He has not.
The U.S. provides intelligence, surveillance and reconnaissance, ammunition and bombs, as well as targeting and planning for NATO’s campaign against the Libyan regime. The U.S. does not fly its pilots over the country, though it does use drones to fire missiles, and it has not tasked ground troops for the mission.
Critics say that the administration's position would allow it to drop a bunker-busting bomb or launch a nuclear weapon against a regime, in a pre-emptive strike, and not technically be at "war." The administration clearly contemplated a much shorter duration of action when it first began airstrikes in February.
Congress has gotten antsy as the costs of the engagement have risen and as the regime itself shows few signs of collapsing. That comports with American intelligence assessments, which predicted that Libya’s leaders would successfully resist a NATO air campaign. It is not clear whether the Office of Legal Counsel expanded upon its position in a formal memorandum, or whether Krass indicated her views in informal discussions.
A senior administration official confirmed that Krass’s boss, the Attorney General, Eric Holder, supported her view. That Mr. Koh, a respected liberal, agreed with Obama and Bauer probably provided the President with intellectual cover despite the fact that the attorney representing the armed forces disagreed.
A White House spokesman, Eric Schultz, declined to elaborate on the disagreements and pointed to a statement by White House press secretary Jay Carney, in which he acknowledged disagreements and said the President welcomed a robust internal debate.
The War Powers Act, passed in 1973 after intense Congressional backlash to the scope of the undeclared wars in Korea and Vietnam includes the provision that “at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.”
At issue is the definition of “hostilities.” The Supreme Court would very likely leave the matter to be subject to a tussle between the executive and legislative branches, reasoning that Congress could simply cut off funding for the Libyan conflict if they believe the President is acting illegally. The President first must notify Congress that he has committed armed forces to a conflict. Then Congress must give its permission for the troops to remain past 60 days and a 30-day withdrawal period.
Correction: An earlier version of this article misspelled the name of an administration lawyer. She is Caroline Krass.