One key to the Administration’s legal argument is to separate U.S. kinetic actions in Libya from the broader NATO action. I have just explained why I believe that those U.S. kinetic actions, considered in isolation, are “hostilities” under the WPR. But I do not think it is right to consider U.S. kinetic actions in isolation from the broader NATO effort.
As Bobby noted, NATO’s Supreme Allied Commander, the person “responsible to NATO’s highest military authority, the Military Committee, for the conduct of all NATO military operations,” is Admiral James G. Stavridis of the U.S. Navy. In other words, the officer in formal command of NATO military actions is a member of the U.S. Armed Forces. Other members of the U.S. Armed Forces presumably work up and down NATO’s chain of command. In addition, as the FT reported a few days ago, based on a DOD memo: “Although it is working under NATO, the US is by far the largest contributor to operation Unified Protector.” The United States supplies a huge portion of the funding (approaching a billion dollars) and (at least through May) about 75% of reconnaissance and refueling missions, as well as other forms of support to the NATO effort in Libya. Basically the U.S. Armed Forces are doing most of the heavy lifting in the conflict short of pulling all the triggers, and the triggers that are being pulled by non-U.S. military forces are technically the responsibility of a member of the U.S. Armed Forces. In this light, it is quite natural to conclude that the transfer of authority to NATO brings members of the U.S. armed forces into responsibility for all NATO attacks on Libya, not just the ones fired by U.S. Forces.
The language of the WPR supports this conclusion (but I do not think the language is necessary to this conclusion). Section 8(c) provides: “For purposes of this joint resolution, the term ‘introduction of United States Armed Forces’ includes the assignment of member of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.” (emphasis added). This definition is relevant because is applies to the entire WPR and the WPR clock in Section 5(b) is tied to the introduction of U.S. Armed Forces into hostilities in Section 4(a)(1) and related reporting duties. On its face this language describes exactly what is going on: the U.S. is assigning members of the U.S. Armed Forces to command and participate in the movement of the regular military forces of France, Great Britain, and other nations that are engaged in hostilities in Libya. The fact that this command and participation happens via NATO seems irrelevant; the fact is that U.S. Armed Forces are helping those nations engage in military hostilities. Thus both the reality of the heavy U.S. participation in the NATO effort, and the WPR attribution rule, suggest that the NATO actions should be viewed as the actions of U.S. Armed Forces for purposes of the WPR. That would mean that the relevant bombing campaign for purposes of whether the U.S. is involved in “hostilities” is much broader and (because it involves NATO fighter jets and other forces, not just drones) more dangerous and more likely to lead to casualties than the drone attacks, considered in isolation.