Jack Goldsmith notes that American servicemembers are getting "danger pay" for engaging in something the Obama administration contends are not "hostilities."
The Defense Department decided in April to pay an extra $225 a month in ‘imminent danger pay' to service members who fly planes over Libya or serve on ships within 110 nautical miles of its shores. That means the Pentagon has decided that troops in those places are “subject to the threat of physical harm or imminent danger because of civil insurrection, civil war, terrorism or wartime conditions.”
As Goldsmith notes, this further strains the administration's rationale that the U.S. is not engaged in hostilities for the purposes of the War Powers Act because U.S. servicemembers are "at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces." If American servicemembers face a "threat of harm" so serious that they qualify for "imminent danger pay" how can at the same time not be so safe that they're not engaged in "hostilities" under the WPR?
The administration's position remains ridiculous even on its own terms, but even if American personnel weren't at risk the idea that dropping tons of bombs on people over a period of months doesn't amount to "hostilities" unless American servicemembers are in danger would still be absurd. Senators John McCain and John Kerry have introduced a measure authorizing funding, if the administration wants to continue operations in Libya it should really encourage Congress to pass it.
UPDATE: Charlie Savage writes that the "danger pay" issue is more complex than it seems:
Moreover, the Pentagon grants some troops extra pay under a different justification – “hostile fire pay” – that is more squarely relevant to an assessment of whether the United States is involved in “hostilities” in Libya. The administration's legal theory has hinged in part on the idea that United States forces are not in danger of taking casualties because there are no ground troops and even though American aircraft and drones are periodically firing missiles at Libyan air defense installations and Libyan forces, they are not able to exchange fire in a serious way.It may also be worth noting that the Pentagon grants “imminent danger pay” to troops in places far beyond conflict zones that anyone is arguing might be subject to the War Powers Resolution's 60-day clock. This list, from September 2010, for example, show that troops in about 40 countries, half a dozen sea areas, and in military detention facilities like Guantanamo were receiving such extra pay.
