The "War" In Libya

A lot is being made about the Obama administration's refusal to refer to the conflict in Libya as a "war." Jack Goldsmith believes the distinction between mere intervention and actual war is being drawn for legal reasons and Spencer Ackerman thinks it is flat out "deceptive." I'm going to disagree with both and say that the Administration isn't calling this a war because it isn't one - yet. Both Goldsmith and Ackerman recognize that there can and have been military actions that don't rise to the level of war, but don't give any guidelines as to why the activity in Libya exceeds the "war" threshold.

Ackerman, with whom I agree with on a lot of things, basically argues it is a war because the conflict is intensifying. Maybe so, but an escalation in activity doesn't make this a war. He states that the NATO intervention in the Balkans was a war, despite the fact that it was never referred to as such, based on the fact that the bombing lasted for 78 days. I'm inclined to agree with him on that point, but the air/naval bombardment in Libya has been going on for much less time.

Goldsmith isn't as pointed in his criticism of the characterization of this conflict. He points out his belief that the Administration is basing its characterization on Department of Justice memos written in relation to the interventions in Haiti and Bosnia that gave a legal basis for why those actions did not fall into the war category. In support of the proposition that neither the conflict in Haiti nor Bosnia constituted war, both of these memos cite, among other things, the presence of consent from the affected country and the low risk of substantial casualties or sustained hostilities. Goldsmith intimates that he's not buying that any of those circumstances exist in Libya. Clearly there is no consent from the government of the affected country since that is the target of the operation. However, Goldsmith believes that substantial casualties and the likelihood of sustained conflict exist.

I've got to disagree with both of these gentlemen. Goldsmith points to documents laying out a good legal framework through which to view the characterization of this conflict. He disagrees that the legal justification for avoiding the "war" tag in Haiti and Bosnia exists here. Ackerman seems to disagree with the characterization based on the escalation of activity. I think that the Haiti/Bosnia reasoning is still applicable in Libya. No, there is no consent from the Libyan government, but I don't think that it is a clear cut case that there will be substantial casualties or a prolonged involvement by the U.S. To the best of my knowledge the only loss the U.S. has suffered so far is a crashed F-15 which went down due to mechanical failure and not enemy fire. We are only a few days into the conflict, and while hostilities may be escalating, there is no definitive proof that we are committed to a long-term fight.

I don't know what threshold we have to cross before this intervention becomes a war, but I don't think we've crossed it yet. Without U.S. troops on the ground, and with air and sea bombardments just a few days old, I believe it is too early to be accusing the Obama administration of deceit by not labeling this action a "war."