Yesterday Harold Koh, the State Department's legal adviser, explained to the Senate Foreign Relations Committee why bombing Libya does not amount to "hostilities" under the War Powers Act:
"From the outset, we noted that the situation in Libya does not constitute a war," Mr. Koh said. He cited four factors—ground troops and significant non-air forces have not been involved, the lack of American casualties or a significant threat of them, a limited risk of escalation, and the limited use of military means—as the central points of logic in the administration's decision to essentially ignore Congress beyond providing largely perfunctory information.
That logic was rejected by many members of the committee.
Senator Jim Webb of Virginia, a Democrat, said, "When you have an operation that goes on for months, costs billions of dollars, where the United States is providing two-thirds of the troops, even under the NATO fig leaf, where they’re dropping bombs that are killing people, where you're paying your troops offshore combat pay and there are areas of prospective escalation—something I've been trying to get a clear answer from with this administration for several weeks now, and that is the possibility of a ground presence in some form or another, once the Qaddafi regime expires—I would say that's hostilities."
A Republican senator, Bob Corker of Tennessee, went further, accusing the administration of "sticking a stick in the eye of Congress" and saying it had done "a great disservice to our country."
The New York Times notes that "officials from the Department of Defense and Department of Justice"—whose lawyers, including the staff of the usually authoritative Office of Legal Counsel, disagreed with Koh's interpretation of the War Powers Act—"declined to provide witnesses for the hearing." The committee ended up approving a resolution that authorizes continued U.S. participation in Libya's civil war for another year, which passed by a vote of 14 to 5. Unfortunately, there was no vote on the question of whether Harold Koh is full of shit.
Last week Gene Healy noted that Koh, a former Yale Law School dean who used to be known as "the leading and most vocal academic critic of presidential unilateralism in war" (in the words of former OLC head Jack Goldsmith), swears his principles have not changed. Also last week, I observed that an OLC that can "say no to the president" is no help when the president refuses to take no for an answer, while Stephen Colbert suggested how Koh's logic could be used to declare peace in Afghanistan.