The president's reasons for skirting the War Powers Resolution sound a lot like his predecessor's justifications for torture
Over the weekend, I got the chance to ask a panel of former executive-branch lawyers the question that's been bugging me.
In 2002, the Bush administration really, really wanted to torture terrorism suspects. But torture was and is against international and American law. The lawyers came up with a nifty idea: they would redefine torture. Under applicable law, to torture means to inflict "severe physical or mental pain or suffering." But from now on, as Jay S. Bybee of the Office of Legal Counsel wrote, that "suffering" "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Paging Jack Bauer.
In 2011, the Obama Administration really really wanted to take part in the NATO mission supporting rebels in Libya. The War Powers Resolution (WPR) requires the President to ask Congress for authorization within 60 days of introducing U.S. Armed Forces into "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." The administration didn't want to do that, so a couple of its lawyers suggested redefining "hostilities." Here's the Administration's explanation, from a report submitted to House Speaker John Boehner in mid-June:
The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.
My question was: Is there a significant difference between these two examples?