The administration has released its rationale for why it's not in violation of the War Powers Act despite being engaged in military operations in Libya without congressional approval, and it's a doozy:
The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes — although unmanned drones operated by the United States periodically fire missiles as well.
They argued that United States forces 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. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians.
“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. We are saying the limited nature of this particular mission is not the kind of ‘hostilities' envisioned by the War Powers Resolution.”
This argument isn't a surprise. It was implicit in the OLC opinion they released shortly after the onset of operations, as I wrote a few weeks ago:
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."
Not only does this argument not really pass muster in terms of the language of the WPA itself, there's something tremendously immoral about this type of justification, which is that America can drop as many tons of explosives on a country as they want, but it's not a "war" requiring congressional approval until Americans start dying.
