It’s the “not war by virtue of not planning” theory of constitutional war powers

Another interesting line: “We were further assured that there is no contingency plan that would involve using U.S. forces occupying Venezuela should the removal of Maduro result in civil unrest in that country.”

*because the president doesn’t currently have a contingency plan for casualties

Had to break to feed the children. Returning, and this is an interesting paragraph. Note the OLC “not a war” analysis is supposed to take into account risk of escalation into war. Here OLC says that the U.S. might sustain significant casualties, yet that doesn’t warrant Congressional involvement—

13/ In an extraordinary show of how absurd this “war in the constitutional sense” test has become, the memo shockingly concludes that:

“It is unlikely that even the full loss of the strike force would amount to the type of sustained casualties that would amount to a constitutional war.”

Also note: the memo clearly recognizes that the operation was a “use of force.” The Administration has been avoiding that language and seemed to want to claim some alternative reality, but it’s clear as a matter of fact that this was a use of force, and it’s recognized repeatedly in the memo.

A reminder about what it means to say that the UN Charter does not bind the President. This is not some rule imposed on us by some external force. The “UN” bogeyman. This is a treaty that the United States negotiated, pushed, and the President ratified with the advice and consent of the Senate.

And here it is: they don’t resolve whether the operation is illegal as a matter of international law because … they claim it does not bind the President. At least “when it comes to extraordinary rendition.”

But … they haven’t reached a conclusion about the legality under international law. (I can answer this one for you!)

Plus an allusion to unwilling/unable theory here. Suggests that the true elected govt is unwilling or unable to control a “threat.” (Not the standard, even under that test)

Some weird conflations of jus ad bellum (e.g. the UN Charter rule prohibiting states from using force on other states’ territories) with jus in bello (the law governing the conduct of hostilities triggered by an armed conflict) in here but hey, they’re mentioning international law!

As expected, the OLC memo argues that the use of force “does not rise to the level of war in a constitutional sense” — which is OLC-speak for, ‘we think the President can do this unilaterally without going to Congress.’

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I look forward to watching!