The lawyers I spoke to argued that there are some differences. First, they said, the administration's definition of "hostilities" is one that has been discussed almost since the WPR was adopted in 1973; Bybee's definition of "suffering" was drawn from an irrelevant federal statute that concerns "an emergency medical condition for the purpose of providing health benefits." Peter Shane of Ohio State University, who served in the Carter Administration Office of Legal Counsel, crisply stated, "a first-year law student handing in that answer in a legislation class would have gotten a failing grade." Second, they argued, the Bush Administration always maintained that, whether it violated the law or not, all laws restricting the Commander in Chief from pursuing terrorism were unconstitutional. By contrast, this administration has consistently said that it recognizes the WPR as binding law. Finally, of course, the torture memo was secret when issued (and some other such memos still are); the public is getting the chance to debate the Obama rationale in real time.

I think those differences are significant; but I am not sure they would convince the ordinary American.

I am not sure they convince me.

First, what practical difference does it make if the administration accepts the law if it then juggles the definitions to avoid it? The result is nonetheless to expand the executive's unchecked authority over the use of military force. Second, how convincing is the current administration's distinction? The word "hostilities," in ordinary use, means "acts of warfare." In most parts of the world, dropping missiles out of Predator drones is seen as such an act (ask the Taliban), and that, among other things is what the U.S. military is doing in Libya.

The administration has given the term what lawyers call a "purposive" interpretation. In this kind of reasoning, a lawyer deduces the meaning of a term from the purpose of the body using it. A safety regulation banning "vehicles in the park" might formally cover Little Sluggo's matchbox car set, but surely banning toys was not the purpose of the law. In the WPR case, they reason, the purpose of the War Powers Resolution is first to keep U.S. forces out of escalating conflicts like Vietnam and second to reduce U.S. casualties. Since the the Libya mission doesn't present those possibilities, it isn't "hostilities."

The definition of torture, in contrast, works directly against the aim of U.S. law. Those laws aim to prevent torture; thus, reading its definition as narrowly as possible is an attempt to sabotage, not comply with, the intent of the statute's framers.

But are these differences without a distinction? Who says the WPR is concerned solely with preventing escalation and U.S. casualties? Isn't it conceivable that some of the Members of Congress actually didn't want U.S. forces inflicting casualties either? That by requiring congressional authorization they wanted to break our national habit of throwing bombs into volatile situations? That they simply believed the text of the Constitution requires authorization for any sustained foreign use of the weapons of war?