Definitions of War

by Naomi Colvin

Today’s New York Times reports that the Obama administration has received conflicting legal advice as to whether US intervention in Libya over the past few months constitutes “hostilities” or not:

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.

The ternms of the War Powers Resolution have probably been ignored more often than they’ve been observed; nonethless a judgement that US action did constitute “hostilities” would substantially increase the pressure already being placed on the US administration by members of Congress that their authorisation should be sought for continuing action.

Earlier this week, in response to this pressure, the Obama administration issued a detailed report explaining their position on why action in Libya does not require the oversight of other branches of the US Government. What this document reveals about the way the administration defines an act of war is, I think, quite interesting. It certainly marks a departure from the usual understanding of what the word entails, a thoroughly uncomprehensive selection of sources for which follow below:

Cicero: “a contending by force”

Hugo Grotius: “the condition of those contending by force as such”

Karl von Clausewitz: “an act of violence intended to compell our opponents to fulfill our will”

Hedley Bull: “organised violence carried on by political units against each other… We should distinguish between war in the loose sense of organised violence which may be carried out by any political unit (a tribe, an ancient empire, a feudal principality, a modern civil faction) and war in the strict sense of international or interstate war, organised violence waged by sovereign states.” (The Structure of International Society, 1977)

And in the specifically American context:

US War Powers Resolution (1973): “It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.”

The key passage in the White House report is the following:

The President is of the view that the current U.S. military operations in Libya are consistent
with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 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.

The report also reveals that, although US involvement has been ‘scaled back’ since the beginning of April, the US military is still actively involved in Libya at the very least in terms of airpower (“American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets”), intelligence (“nearly 70 percent of the coalition’s intelligence capabilities”) and refuelling. These activities all clearly constitute part of the “organised violence” Hedley Ball talks about when pinpointing exactly what war is, even if you see them as more of the ‘organisation’ aspect than the ‘violent’ one.

As the War Powers Resolution does not restrict itself to talking about military actions which are clearly illegal (as they would be in the absence of a Security Council Resolution) or those for which no rhetorical justification can be found, I find it hard to excape the same conclusion that Amy Davidson reaches, namely that the US administration’s sense of what constitutes war, or ‘hostilities’, is formed fundamentally by a sense of whether said activity puts US personnel in danger – not least because the same criteria seems to apply to the ongoing drone attacks in Yemen. As a definition of what constitutes war, this is – to say the least – novel.

Update

This op-ed by Eugene Robinson in the Washington Post – of all places – could hardly be more emphatic:

President Obama’s claim that U.S. military action in Libya doesn’t constitute “hostilities” is nonsense, and Congress is right to call him on it.

This, and other recent pieces on Obama’s definitional problem, reached me via Glenn Greenwald’s piece today.

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