War Powers Resolution: Libya

Is the Administration Firing With More Than Drones in Libya?

By Jack Goldsmith
Friday, June 17, 2011, 12:15 PM

My analysis of the War Powers Resolution yesterday assumed, based on Charlie Savage’s story, that the only kinetic fire that U.S. Armed Forces have been using in Libya since April came from unmanned aerial vehicles, or drones.  But Richard Klingler suggested, based on Administration documents presented to Congress, that the Administration might be using other forms of fire.  And now Peter Shane, the separation of powers expert at Ohio State University Moritz College of Law, emails this in connection with my post:

I’m wondering if your post doesn’t actually understate matters.  Did you catch this paragraph on page 9 of the Libya report:  “The overwhelming majority of strike sorties are now being flown by our European allies while American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets, all within the UN authorization, in order to minimize collateral damage in urban areas?”  Although the sentence might just be sloppily drafted, it seems to suggest that, in addition to the unmanned Predator strikes, we are still engaged in piloted strikes aimed at “the suppression of enemy air defense.”  If so, what is the Administration defense – that these particular strikes are intermittent, even if our overall engagement is sustained?  If we’ve got human pilots in the planes, then the warfare-from-a-distance excuse seems inapplicable.

Peter is right that the WPR analysis becomes even harder for the administration if it is using piloted strikes.  And now that I study the documents more carefully, the Administration has indeed been ambiguous about what forms of fire are being used in Libya.  If anyone has information about whether drones are the only forms of fire, or whether other forms of fire are being used (and if so, which ones), please let me know and I will post.