War Powers Compliance

May 26 '11

The House Foreign Affairs Committee yesterday revisited the question of the legality of the US participation in the ongoing (and escalating?) airstrikes on Libya pursuant to UN resolution 1973. Without Congressional authorization for the operation, members of both parties noted, the 60-day limit set on military operations by the War Powers Resolution (WPR) had been passed. So what happens now? Charlie Savage notes in today’s New York Times that suggested responses at the hearing ranged from simply approving the Libyan operation (as Sens. John Kerry and John McCain recently proposed), to cutting off funds for it.

The pedantic answer, I think, at least in one reading of the WPR (its full text is here), is that unless Congress acts to clarify matters, Obama is not bound by the 60-day time limit. But this is only because it is possible to be completely afoul of the spirit of the WPR while in technical compliance with its provisions.

There are many drafting ambiguities embedded in the War Powers Resolution, as I noted at the start of the Libyan intervention (see this post from March).  This one is tied to the question of what activates the 60-day limit. We first turn to Section 5 (b) of the WPR, which reads as follows:

“Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of the United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces [or] (2) has extended by law such sixty-day period….”  (Or, unless the president has certified that “unavoidable military necessity respecting the safety” of the troops in action requires an additional thirty days for their withdrawal.)

So, we go to Section 4(a)(1), which reads: “in the absence of a declaration of war, in any case in which United States Armed Forces are introduced into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances…. the president shall submit with 48 hours [to Congress] a report, in writing, setting forth” the circumstances of the engagement, “the constitutional and legislative authority under which such introduction took place,” and the “estimated scope and duration” thereof.

This is one reason presidents, including President Obama in his March 21 letter to Congress, never cite Section 4(a)(1) in their communications (President Ford, in1975, was the exception who proved the rule, and he did so after the “hostilities” in question were over anyway.)  Instead of  reporting “pursuant to” the WPR, they purport to report “consistent with” it.

They have also taken refuge in the ambiguity as to when a report under the section is “required to be submitted,” even in the absence of said report. What counts as hostilities, anyway? when exactly do they start (especially if it is an alliance technically doing the fighting)? and if you stop participating in said hostilities for a day or two, does the clock re-start?

Most importantly, perhaps, what if you can claim, however plausibly, that a report was never actually required to be submitted, because this particular intervention is within the president’s unilateral powers? or because, more generally, the WPR is unconstitutional anyway? None of this is clear.

Anyway, as it stands, no report, no clock.

Now, Congress could start the clock itself, either by declaring a date certain as to when a report was “required to be submitted,” or directly. It has done this only once, with regard to Lebanon in 1983 (see Public Law 98-119). It didn’t like that result, and mostly, it has ducked the issue.

It would be nice if the current situation prompted real debate, though. After all, these issues with the 60-day limit itself have rarely received much attention in practice. This is largely because the kinds of military interventions undertaken since its passage have either received congressional support, as in the two Iraq wars, or have been over well within the requisite time frame: cruise missile strikes  take closer to 60 minutes than 60 days. (For a detailed review of the WPR’s usage since 1973, see the Congressional Research Service reports here and here.)

A partial exception might be the NATO air campaign over Kosovo in the late 1990s – though there Congress did vote funding for the operation, even if it didn’t specifically authorize it in stand-alone statute.

But this is not the case for Libya, at least not yet. And in 1980, the Office of Legal Counsel held that the clock, in the abstract anyway, was constitutional. This may have  been overridden by subsequent opinions not yet made public, though the recent comments of one of George W. Bush’s OLC head, Jack Goldsmith, imply otherwise. But we probably stand where we have so often stood with regards to the framework statutes passed by Congress during the “resurgence regime” of the 1970s. As Madison foresaw in Federalist #51, interbranch enforcement does not happen without political will.