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A New Tactic to Avoid War Powers Resolution Time Limits?

Jack Goldsmith
Tuesday, September 2, 2014, 6:54 AM
President Obama appears to be trying a new method to avoid the 60-day War Powers Resolution Clock for U.S. operations.

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Yesterday President Obama sent a War Powers Resolution (WPR) letter to Congress concerning U.S. airstrikes “in support of an operation to deliver humanitarian assistance to civilians in the town of Amirli, Iraq.”  This is the third Iraq WPR letter to Congress in a month, and the sixth this summer. 

In June the President sent three WPR letters – the first (June 16) on the initial deployment of 275 soldiers to protect the embassy; then another (June 26) on further troops to protect the embassy and increased intelligence-gathering against the Islamic State; and a third (June 30) for ore troops to protect the embassy.  Six weeks later, on August 8, the President sent a WPR letter concerning the use of force in Iraq to stop the “current advance on Erbil by the terrorist group Islamic State of Iraq and the Levant and to help forces in Iraq as they fight to break the siege of Mount Sinjar and protect the civilians trapped there.”  On August 17, he sent a letter concerning the use of force in Iraq “to support operations by Iraqi forces to recapture the Mosul Dam.”  And then yesterday’s letter on Amirli.  (John recently summarized how these WPR letters are typically generated.)

Such frequent letters to Congress about discrete missions within a single country are not typical.  Typically the President sends one WPR letter to cover the use of force within a country, and then updates that use of force as part of a biannual consolidated report.  For example, with respect to the Libya intervention, the President sent a letter to Congress on March 21, 2011, and then updated Congress on the Libya uses of force only once, in his June 2011 mid-summer consolidated report,  even though U.S. drones hit many different targets in Libya over a nine-month period.  In short, the President did not separately report every discrete military initiative in Libya.  Nor, of course, has he done so in Afghanistan or Yemen or Somalia, opting instead to update the Congress in summary fashion on the use of the U.S. Armed Forces in those nations every six months. (The June and December consolidated reports from 2013 can be found here and here.)

Why, then, has the President sent Congress six narrowly tailored WPR letters related to Iraq since mid-June?  I can think of two possible explanations. First, the President wants to keep Congress super-informed about what he is doing in Iraq.  I doubt this is the reason, or at least the main reason, since the information in the letters was publicly known (or about to be).  Relatedly, the administration might want to emphasize to Congress that each use of force is limited in scope and time, though in the aggregate such discrete reporting might have the opposite effect. Second, the administration is trying to circumvent WPR time limits on it deployment of troops and uses of force in Iraq.  (NSC spokeswoman Caitlin Hayden recently dodged whether the WPR applied to the recent air strikes and related actions in Iraq.)  What follows is my analysis of this second possibility.

Simplifying somewhat, Section 4(a) of the WPR requires the President to inform the Speaker of the House and the President pro tempore of the Senate about the scope and legal basis for the introduction of U.S. armed forces into hostilities and related situations.  Section 5(b) then states that within 60 (or some circumstances 90) days, “the President shall terminate any use of United States Armed Forces with respect to which such report was submitted,” absent appropriate congressional authorization.  The duty to terminate hostilities is tied to any use of the armed forces with respect to which the original report was submitted.  If the use of the armed forces with respect to which the report is filed is narrowly defined, then arguably no duty to report materializes if the discrete use of the armed forces related to the report terminates before the 60 days.  So for example, the administration might argue that the use of force with respect to the Mount Sinjar siege (the topic of the August 8 letter) is over and thus no clock is running with respect to that use of force.  And the same might go for the use of force with respect to the Mosul Dam that was the topic of the August 18 letter. 

As long as that use of force is over within 60 days after it began, the argument goes, the clock stops with respect to that action even though operations continue in Iraq.  On this logic, if the President reports to Congress about discrete missions in Iraq, and if each discrete mission lasts less than 60 days, the President can use force in Iraq indefinitely without triggering Section 5(b). Discrete mission reporting to avoid WPR time limits fits reasonably well with the text of the WPR, though of course not with its spirit.  If this is what the administration is up to, then it has found a clever way – in an era of nimble, distinct, drone-dominated missions – to gut what little may be left of the WPR’s time limits.  (Discrete reporting of this sort might not be unprecedented.  As I once noted, “President Clinton submitted four WPR reports to Congress over a seven-month period every time the U.S. had a significant air strike in Bosnia,” though we don’t know if this was done to skirt the WPR, or under what theory.) 

Moreover, discrete reporting is not the only way the President might avoid a duty to terminate the use of U.S. armed forces in Iraq under Section 5(b).  He might claim, as he controversially did in Libya, that the armed forces deployed in Iraq are not engaged in “hostilities” under Section 4(a) and thus that the duties of Section 5(b) are not in play.  (This was a bad argument in Libya but would be worse as applied to air strikes in Iraq (see addendum.))  Or the President might claim that he reported to Congress under Section 4(b) or (c), not 4(a), and thus has no duty to terminate the use of U.S. forces under Section 5(b).  (Again, probably not a great argument for all of the current uses of force in Iraq.)

The President’s legal team is apparently already using one of these legal rationales.  The first Iraq WPR, concerning the troops sent to Baghdad, was sent to Congress in June, more than 60 days ago, and I believe the troops are still in Baghdad to defend the embassy.  Assuming someone inside the Executive branch is paying attention to this issue (no one in Congress seems to have noticed), the legal rationale for why the Section 5(b) termination duty has not been triggered is probably that the troops in Baghdad are not engaged in hostilities and do not face an imminent threat of hostilities.  This argument is plausible in the Baghdad context but is much harder to make with respect to the bombing (and Special Operations Forces) north of Baghdad.  The clock for those bombings and those forces started ticking in early August, and in that context the President may have to rely on the discrete reporting argument outlined above to skirt Section 5(b).  We probably won’t know the administration’s legal theory in that context until early October, when the sixty-day clock on the August uses of force in Iraq ostensibly expires – assuming, that is, that the President has not satisfied the WPR in the interim by winning congressional authorization (or an extension of time) for the Iraq deployment.

A final note.  As the Addendum below indicates, the President’s rate of WPR reporting has increased over time.  He issued two consolidated WPR reports each in 2009 and 2010, four WPR reports in 2011, five WPR reports in 2012, seven WPR reports in 2013, and already ten WPR reports this year.  Many of these reports concern small actions in Africa, and the consolidated reports concern many countries, and there are many classified annexes that likely concern other countries.  So there is much complexity here.  But the bottom line of stepped up WPR reporting is still remarkable.  What it means precisely will have to await another post.

Addendum: War Powers Resolution Letters Sent by President Obama to Congress in: 2014 Iraq – September 1, 2014 Iraq – August 17, 2014 Iraq – August 8, 2014 Libya – July 27, 2014 Iraq – June 30, 2014 Iraq – June 26, 2014 Iraq – June 16, 2014 Consolidated Report (Various Countries) – June 12, 2014 Chad – May 21, 2014 Central Africa (Lord’s Resistance Army) – March 25, 20142013 South Sudan – December 22, 2013 South Sudan – December 19, 2013 Consolidated Report (Various Countries) – December 13, 2013 Jordan – June 21, 2013 Consolidated Report (Various Countries) – June 14, 2013 Niger – February 22, 2013 Somalia – January 13, 20132012 Chad – December 29, 2012 Consolidated Report (Various Countries) – December 14, 2012 Libya  – September 14, 2012 Consolidated Report (Various Countries) – June 15, 2012 Somalia – January 26, 20122011 Consolidated Report (Various Countries) – December 15, 2011 Central Africa (Lord’s Resistance Army) – October 14, 2011 Consolidated Report (Various Countries) – June 15, 2011 Libya – March 21, 20112010 Consolidated Report (Various Countries) – December 15, 2010 Consolidated Report (Various Countries) – June 15, 20102009 Consolidated Report (Various Countries) – December 16, 2009 Consolidated Report (Various Countries) – June 15, 2009

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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