The White House says it is confident President Obama has followed the law when it comes to U.S. involvement in Libya. But members of Congress and legal scholars aren't so sure. They're debating whether the president exceeded his authority by not getting approval from Congress.
Nearly 38 years ago, lawmakers passed the War Powers Resolution. Congress directed the White House to get permission within two months of starting hostilities.
But when it came to moving against Libya in April, Obama took an unusual approach. Like a lot of clever lawyers, he found an artful dodge.
"The War Powers Resolution uses the word 'hostilities' which is key here," said University of Texas law professor Bobby Chesney, and the law "does not define that term."
Obama is relying on the fact that troops aren't on the ground in Libya, and aren't taking fire, to argue the nation isn't engaged in hostilities. White House press secretary Jay Carney played down the American role at a briefing with reporters this week.
"What we are doing in our support role in the NATO mission is providing intelligence, refueling, and other capabilities that allow this mission to proceed effectively," Carney said.
Carney also played down the fact that U.S. drones are flying over Libya, carrying Hellfire missiles that have hit targets in the country as many as 100 times since the conflict began.
Notre Dame international law professor Mary Ellen O'Connell said the White House is playing word games.
"I have no doubt that if we are using drones in Libya, armed drones, we are engaged in hostilities," O'Connell said.
And her view has got support from a surprising direction, including the top lawyers at the Pentagon and the Justice Department. The New York Times reported Obama rejected their interpretation of the War Powers Resolution and instead sided with the State Department and the White House legal counsel's office.
Bruce Ackerman, who teaches law at Yale University, said he isn't impressed with the White House analysis.
"The White House report is not a serious legal document," Ackerman said.
Out of 38 pages, he said, only one paragraph is devoted to the legal conclusions, a far more shallow treatment than it would have gotten at the Justice Department.
The whole episode has reignited a debate that began in the Bush years about cherry-picking legal advice to approve controversial programs like harsh detainee interrogations and government wiretapping.
But this White House says it listened to differing views before acting. And that Obama is well within his rights to be the final voice on legal positions.
"It is our judgment, the president's judgment, that the actions being taken by the United States in its support role for this NATO mission do not meet the threshold set by the War Powers Resolution and the hostilities phrase," Carney said.
This week, the House and Senate are considering measures that would give Obama leeway to use military assets in Libya for about a year, so long as no American troops set foot on the ground there.
There aren't any U.S. boots on the ground now. And the approval of Congress, even this late in the conflict, would make all the difference, according to Yale University's Ackerman.
"The founding fathers contemplated cooperation between the president and the Congress and gave the last say to Congress," Ackerman said.
National security experts including Bobby Chesney said it all might have been easier if Obama had just asked back in April, before the political and legal debate intensified.
In Iraq and Afghanistan, Chesney said, "Congress and the president were pulling essentially in the same direction. This situation with Libya is a reminder that's not always going to be the case."
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