“Hostilities”

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“Hostilities”

Published in the Maryland Daily Record July 5, 2011

There’s been a lot of intelligent comment[1] about Barack Obama and the War Powers Resolution (WPR) as we’ve neared and passed the 60-day deadline set by the WPR for the administration to ask Congress’s permission to continue with our military actions against Libya.  Original remarks may be hard to come by.  And I wrote about this myself three months back, shortly after the 60 days began.  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.  So it seems best to stay on the story, even at the risk of a little repetition – of both myself and others.

If you’ve come in late, though, you should know that the one constant theme in the tale is: Heads I win, tails you lose.  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.  We quickly found that presidents actually make these decisions.

Most of the early inter-branch struggles about this revolved around the definition of “war.”  If it was a war, Congress got to declare it.  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 “imperfect war.” When it was an imperfect war, the president got to keep his Commander-in-Chief powers, while Congress got to keep nothing.  Not surprisingly, the vast preponderance of our dozens of military deployments have been imperfect wars.

The WPR was born of Congressional frustration with this state of affairs. 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.  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.  Except the WPR doesn’t talk of “imperfect wars,” which admittedly has a 19th Century-ish ring to it.  The WPR speaks instead of “hostilities,” and thereby hangs this particular tale.

Presidents have generally tried to subvert the WPR.  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.

Enter the Obama administration and its military involvement with Libya.  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.  There is no ambiguity surrounding the absence of authorization after 60 days – if the WPR applies at all.  But guess what?  Obama claims it doesn’t apply at all, because there are no “hostilities” at the moment.

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

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 “hostilities”?

Here is the key analysis, from the briefing paper:

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.[2]

Fascinating stuff, to be sure, but I kind of missed the part which demonstrates the lack of “hostility” 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.  Doesn’t it make more sense to say that if our efforts aim at and help achieve things and people being blown up, they constitute hostilities?

Speaker Boehner certainly thought so, commenting that these explanations don’t pass the straight-face test. Note that the American Heritage Dictionary lists as the obviously applicable definition “acts of overt warfare.” And what could this be except warfare?  Not police work: I doubt there’s a single police force in the world that uses drones to take out bad guys or briefs the pilots of and refuels fighter jets.

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

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.  There the word denotes situations in which nations are shooting; it’s that simple.[3] Under that apolitical definition, we’re obviously engaged in hostilities.  Doesn’t matter that the Libyans can’t shoot back; our drones are shooting at them.  It shouldn’t matter that we’re only telling some French fighter jockey where to fly; if we’re handing out target assignments, we’re engaged in that sortie, irrespective of whose air force does the actual strafing.  And that bit about humanitarian motivations: if that matters, then the Civil War wasn’t hostilities either.

Even if you think it’s 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.


[1].  See, e.g. Conor Friedersdorf’s column in The Atlantic here.

[2].  Briefing paper at 25.

[3].  See, e.g., United States v. Standard Oil of N.J. (2d Cir. 1949) (“hostilities” are “warlike” activities for purposes of marine insurance); Lord, Day & Lord v. Socialist Republic of Vietnam (S.D.N.Y. 2001) (“hostilities” 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’s Service, 352 F.Supp. 827 (9th Cir. 1948) (“hostilities” 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., 352 F.Supp. 827 (N.D.Cal. 1970) (flare dropped by a belligerent’s warplane, even if by negligence, was part of “hostilities” for purposes of policy exclusion).

Copyright (c) Jack L. B. Gohn

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