The Contrast Between Libya and the Pre-AUMF “War” with Al-Qaeda

Apologies for the light blogging the past couple of weeks — although the upside is that I am now officially Dr. Heller, having successfully defended my dissertation at Leiden University in the Netherlands a few days ago.  It was an amazing (and amazingly formal) experience, and I’ll blog about it once I get the official photos from the university.

I’ve been following the debate over Libya and the War Powers Resolution (WPR) with great interest the past couple of weeks.  I don’t have anything intelligent to add to that debate, but I have been struck by the contrast between the Obama administration’s view of “hostilities” for purposes of the WPR and its view of “armed conflict” for purposes of the military commissions — particularly with regard to “war crimes” committed prior to the AUMF.  As Jack Goldsmith notes in a superb recent post, the two standards are not only interrelated, the former was intended to be broader than the latter:

[T]he House Report to the WPR says that “hostilities” was a substitute for “armed conflict” under the laws of war and was meant to have a broader meaning.  Some might not think this legislative history is relevant to an interpretation of the statute.  But a 1980 OLC opinion acknowledges without objection that “the word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope.”  The Obama lawyers told Charlie Savage that the 1980 opinion “remained in force.”  This is a large problem for the Administration, because the U.S. component of the Libya operation, considered by itself, is clearly an armed conflict under the laws of war.  That suggests, under the OLC opinion, that it also amounts to hostilities under the WPR.

Notice how the Obama administration is working both sides of the street.  On the one hand, the administration argues that U.S. actions in Libya do not qualify as “hostilities” for purposes of the WPR, because they “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.”  On the other hand, the administration insists that there was an “armed conflict” between al-Qaeda and the U.S. prior to the AUMF, which is a necessary condition of being able to prosecute al-Nashiri for the bombing of the USS Cole in 2000 and Khalid Sheikh Mohammed for 9/11, because al-Qaeda “declared war” on the U.S. in 1996:

Mr. Nashiri’s case would also test another legal proposition: whether a state of war existed between the United States and Al Qaeda at the time of the Cole bombing — before the Sept. 11 terrorist attacks and the authorization by Congress to use military force against their perpetrators.

The United States initially handled the Cole attack as a peacetime terrorism crime, but the government now contends that a state of armed conflict had legally existed since 1996, when Osama bin Laden declared war against the United States.

According to the Obama administration, therefore, “firing missiles from drones that kill people over an extended period of time pursuant to a U.N.-authorized use of force” (to quote Goldsmith again) does not qualify as hostilities for purposes of the WPR, yet a non-state actor’s decision to “declare war” on the U.S. (a meaningless act under international law) creates an armed conflict for purposes of determining whether particular acts of terrorism are a war crime.  And this even though the concept of “hostilities” is supposed to be broader than the concept of armed conflict.

The contrast is striking — and still more proof that, like its lawless predecessor, the only principle guiding the Obama administration’s approach to national security law is expedience.