Yesterday Defense Secretary Robert Gates announced that the U.S. had deployed predator drones in operations in Libya, describing their involvement as a "modest contribution," to a mission being carried out by NATO allies. Vice Chairman of the Joint Chiefs of Staff Gen. James Cartwright said the drones were "uniquely suited for areas -- urban areas where you can get low collateral damage," which means he thinks they'll kill fewer innocent people.
If yesterday's briefing is any indication, the Obama administration's view of operations in Libya still don't qualify as a war requiring congressional authorization under the War Powers Act, which only authorizes the president to wage war for 60 days without congressional approval, in part because the deployment does not involve the significant risk to life for U.S. personnel. We are on day 33 of operations in Libya.
In the OLC memo justifying the administration's intervention in Libya, Principal Deputy Assistant Attorney General Caroline D. Krass cited the deployment of ground troops in Bosnia and Haiti in the 1990s:
This Office acknowledged that “deployment of 20,000 troops on the ground is an essentially different, and more problematic, type of intervention,” than air or naval operations because of the increased risk of United States casualties and the far greater difficulty of withdrawing United States ground forces. But we nonetheless concluded that the anticipated risks were not sufficient to make the deployment a “‘war' in any sense of the word.”
So, balk if you want to about how the drones signal a prolonged U.S. military involvement in Libya that goes beyond any reasonable definition of "limited duration"; flying robots aren't ground troops, and we'd need at least 20,000 of those combined with substantial risk to their lives to make this whole thing a legit "war."
Not everyone subscribes to the administration's view. Yale Law professor Bruce Ackerman points out that the War Powers Act "covers 'hostilities,' and does not limit itself to “wars,” supposing that there is a distinction between the two terms." Chris Anders, senior legislative counsel with the ACLU, added that "it seems very unlikely that the framers of the Constitution ever would have thought that firing cruise missiles into a foreign country, sinking enemy boats, and attacking enemy ground troops with armed drones and low-flying gunships doesn't constitute the kind of military action requiring congressional approval."
The administration isn't the only actor here, of course. As Scott Lemieux has written, part of the reason the executive branch has so much power to wage war is that Congress typically doesn't assert itself, and this case is no exception.
Or at least it might not be an exception. See, if you want to get real uptight about this whole Constitution/War Powers thing, the administration could always fall back on the arguments of John Yoo and say that Congress authorized war in Libya when it approved military appropriations alongside all the other spending in the recent budget deal that prevented a government shutdown.
You'd have to go the full Yoo to take that position, though. "Section 8 of the War Powers Resolution makes it clear that a general authorization or appropriation of funds does not suffice," Ackerman points out. University of Texas Law professor Robert Chesney says he thinks that "this is precisely what the admin would most likely argue," if push came to shove, but that "it might remain plausible for opponents to argue that even a post-intervention funding bill does not automatically count as Congress agreeing to pay for the war and hence signing off on it for constitutional purposes." But Congress would still have to care.
