Richard Klingler, currently a partner at Sidley Austin and previously the NSC's Legal Advisor (2006-07), offers the following assessment of the Administration's WPR/Libya arguments (which can be found now on p. 25 of this larger document the White House sent to the Hill yesterday), explaining along the way why he does not think the examples I mentioned in a post yesterday lend support to the administration's narrow interpretation of "hostilities." He writes:
A few quick thoughts in response to your posting on the Administration’s Libya WPR argument:
(i) The Administration reports a more robust engagement than your penultimate paragraph suggests. The Report (at 9) indicates that “now,” “flown” “American strikes” are directed toward “the suppression of enemy air defenses,” and that this is separate and in addition to drone strikes. This is a crucial point for the WPR analysis.
(ii) The 1980 OLC opinion and related statements about “exchange of fire” on a “sustained” basis address circumstances where U.S. forces are subject to occasional sniping or attacks. ‘We can fire on them as long as we think we won’t be hit’ – the essence of the Administration’s view --isn’t the gist of or supported by any of the statements you list.
(iii) I read the Kosovo OLC opinion as assuming, though not directly addressing, that multiple air strikes (in conditions of lesser conflict than in Libya) amount to continued use of forces in hostilities. The Somalia OLC opinion expressly didn’t address the WPR.
(iv) With respect, I think you avoid the crucial question: is there a straight-faced statutory argument that U.S. air and drone strikes against Libyan targets in the midst of a civil war and in necessary support of a broader allied sustained campaign don’t amount to continued introduction of forces into hostilities? The materials you list really don’t begin to address that question. I think the answer is pretty clearly ‘no.’
(v) ‘Where’s Justice?’ is a key consideration. It’s quite unusual for a modern Administration to issue a document expressly asserting the President’s own construction of a statute (at 25 of the Report) without some imprimatur from DOJ. Indeed, the document bears the seals of DoD and State, and the White House Counsel (and the Legal Adviser) front the issue and pointedly decline to address whether DOJ endorses the position. Another way of stating the statutory issue is: do you think OLC would sign off on it? (And, if not, how well served was the President?) And if not OLC, what about the Attorney General, who for D.C. voting, DOMA and otherwise hasn’t been shy about advising the President and providing public support for the Administration’s controversial legal positions?