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When Is a War Not a War? When President Obama Says So

The expected showdown between the president and Congress over the War Powers Act took a strange and exotic turn on Wednesday when the administration claimed that it was not engaged in a war in Libya, and had not been involved in hostilities since April 7.

The State Department's legal advisor, Harold Koh, claimed in an interview with the New York Times that "the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”

Koh was careful not to anger Congress any further:

"We are not saying the president can take the country into war on his own,” Mr. Koh said. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress."

It may be too late. A bi-partisan group of House members led by Reps. Dennis Kucinich (D-OH) and Walter Jones (R-NC) has filed suit in federal court claiming the administration is in violation of the War Powers Act. Kucinich said: “With regard to the war in Libya, we believe that the law was violated. We have asked the courts to move to protect the American people from the results of these illegal policies"

Speaker John Boehner didn't go that far, but still registered his disgust with the administration's non-cooperation in explaining the U.S. mission in Libya by sending a letter to the White House on Tuesday calling on the president to "faithfully comply with the War Powers Resolution and the requests made by the House of Representatives, and that you will use your unique authority as our President to engage the American people regarding our mission in Libya.”

On June 4th, the House requested that the administration answer 21 questions in a resolution on Libya that sought clarification on the war, “including its goals and objectives, costs and justification for not seeking congressional authorization.” The measure included a deadline of 14 days for the president to respond.

In his Tuesday letter to the White House, Boehner told the president that he was out of time:

“Given the mission you have ordered to the U.S. Armed Forces with respect to Libya and the text of the War Powers Resolution, the House is left to conclude that you have made one of two determinations: either you have concluded the War Powers Resolution does not apply to the mission in Libya, or you have determined the War Powers Resolution is contrary to the Constitution,” Mr. Boehner wrote. “The House, and the American people whom we represent, deserve to know the determination you have made.”

Given the response of Mr. Koh, it would appear that the president does not believe that firing missiles from drones, manning a blockade line at sea, refueling NATO combat aircraft, and flying sorties that enforce the "no fly zone" in Libya can be defined as American forces engaging in "hostilities" -- at least for the purpose of a work-around for the War Powers Act.

An April memo from DoJ's Office of Legal Counsel determined that the War Powers Act did not apply to the Libya operation because the president had determined that the conflict's nature, scope, and duration would be limited.

That memo is a little out of date. NATO has vastly expanded its original mission and now appears to be trying to kill Muammar Gaddafi. And there is certainly nothing "limited" about the duration of the conflict.

The president's current position on the War Powers Act also directly contradicts what he told the Boston Globe in December 2007:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Whether or not the administration will ask for formal congressional authorization, the questions asked by the House in their June 4th resolution are being considered by the White House and a response will be given on Wednesday:

Carney, however, said Obama acted within his authority as chief executive and noted that the president had limited the U.S. role in the mission from the start.

"We have acted in a manner consistent with the War Powers Resolution," Carney said, adding that the report to Congress would include a legal analysis that would address questions raised by legislators.

The White House is banking on two things: that the courts will shy away from adjudicating a dispute between the executive and legislative branches, and that splitting hairs in defining "hostilities" will satisfy a majority of Congress.

As for the historic reluctance of the judicial branch to get involved in the internecine warfare between a president and Congress, Doug Mataconis at Outside the Beltway describes some recent history:

The most recent example of a case like this was Campbell v. Clinton, a case filed in Federal Court in 1999 seeking a declaration that President Clinton’s decision to commit U.S. military forces to the NATO miltiary action against Yugoslavia over the disputed territory in Kosovo. The District Court rejected the challenge on the grounds that the lawmakers in that case did not have standing to challenge a military action in Federal Court. The Court of Appeals affirmed the District Court’s decision, and pointed out quite forcefully to the lawmakers that they had other options available to them more appropriate than getting the Judicial Branch involved.

The president's political calculation regarding his definition of the word "hostilities" may very well work with a majority of the House. Boehner himself pointed out that the president was "technically" in compliance, although he said that prior to the June 4th resolution; since then, the Republican caucus has grown restive about our open-ended commitment in the NATO-led operation.

The congressional suit will almost certainly be slapped down and Boehner is not likely to be satisfied by the president's explanations for why we are in Libya and what our goals are. There may be some broadly drawn resolution passed that doesn't acknowledge we are in combat or that the War Powers Act applies, and calls upon the president to "consult" in some nebulous way with Congress on the operation. Such a resolution, sponsored by John McCain, is being crafted by the Foreign Relations Committee in the Senate, but even members of the president's own party are dissatisfied that it doesn't go far enough in requiring the White House to inform Congress what it is doing in Libya.

In the end, the president -- as all presidents before him -- will win this fight. If Obama is smart, he'll at least make it appear that he is cooperating by giving Congress some kind of face-saving means to support the operation.