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Problems with the Obama Administration’s War Powers Resolution Theory

Jack Goldsmith
Thursday, June 16, 2011, 8:38 AM
In this long post I analyze the Obama administration’s legal arguments for compliance with the War Powers Resolution.  A later post will consider the broader significance of the arguments. Here is the administration’s formal explanation of its compliance with the WPR:
The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S

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In this long post I analyze the Obama administration’s legal arguments for compliance with the War Powers Resolution.  A later post will consider the broader significance of the arguments. Here is the administration’s formal explanation of its compliance with the WPR:
The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision.  U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo.  U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.
Other important tidbits can be found in this Charlie Savage story. I do not find the Administration’s arguments persuasive. Begin with the text of the WPR.  Section 4(a) of the WPR requires the President to report to Congress “in any case in which United States Armed Forces are introduced: (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances ...”  Section 5(b) then requires the following: “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 United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless” Congress authorized the action. The administration’s position – this is clearer in the Savage story than in the formal announcement – is that the U.S. was (or might have been) engaged in “hostilities” under Section 4(a)(1) before April 7, but after that date it was not engaged in hostilities because it (I) stopped dropping bombs from fighter jets and started dropping them instead, occasionally, from unmanned aerial vehicles (UAVs), and (II) played only a “supporting role” to NATO.  Thus, the Administration concludes, because hostilities ceased before 60 days, there is no need to terminate the use of U.S. Armed Forces under Section 5(b). I.     Warfare from a Distance The Administration argues that once it starts firing missiles from drones it is no longer in “hostilities” because U.S. troops suffer no danger of return fire and no danger of casualties, and (in contrast to ground troops) drones can easily be removed from the fight if Congress so decides.  (Note that this argument implies that the President can wage aggressive war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution's time limits.  So the implications here, in a world of increasingly remote weapons, are large.)  One difficulty in assessing the argument is that the WPR does not define “hostilities.”  But common sense suggests that firing missiles from drones that kill people over an extended period of time pursuant to a U.N.-authorized use of force constitutes “hostilities.”  So too do standard definitions of the term “hostilities,” which refer to acts or states of warfare or violence or unfriendliness without reference to the vulnerability of the aggressor or the reciprocity of the fighting (though of course “hostilities” can refer to reciprocated fighting). Moreover, the House Report to the WPR says that “hostilities” was a substitute for “armed conflict” under the laws of war and was meant to have a broader meaning.  Some might not think this legislative history is relevant to an interpretation of the statute.  But a 1980 OLC opinion (no link) acknowledges without objection that “the word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope.”  The Obama lawyers told Charlie Savage that the 1980 opinion “remained in force.”  This is a large problem for the Administration, because the U.S. component of the Libya operation, considered by itself, is clearly an armed conflict under the laws of war.  That suggests, under the OLC opinion, that it also amounts to hostilities under the WPR.  Nothing else in the 1980 opinion detracts from this conclusion.  Attention has been focused on its statement that “the term [“hostilities”] included a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces”  (emphasis added).  This passage does not say that exchanges of fire are necessary for hostilities, but rather that hostilities include exchanges of fire.  The opinion went on to add that the term “hostilities” does not encompass “irregular or infrequent violence which may occur in a particular area,” and should not necessarily be read to include “sporadic military or paramilitary attacks on our armed forces stationed abroad” because “[s]uch situations do not generally involve the full military engagements with which the Resolution is primarily concerned.”  U.S. involvement in the armed conflict in Libya is neither irregular nor infrequent nor sporadic.  In short, I do not see how the Administration squares its interpretation of the WPR with the 1980 OLC opinion. Some precedents have also been invoked to support the administration’s reading of the WPR.  The main ones come from stray statements (not formal legal opinions) concerning Lebanon, Iraq, Somalia, and Bosnia.  I will consider them briefly. In 1983, the Reagan Administration did not at first Report to Congress on the introduction of troops to Lebanon, even after a few casualties, because the action was not offensive.  Even if this was a correct interpretation of the WPR – it arguably was not, because hostilities could have been anticipated – the case is distinguishable from Libya because the Libyan operations are clearly offensive and much more extensive. In 1988, Assistant Secretary of State J. Edward Fox*, responding to a congressional question (in connection with a confrontation with Iraq) whether Section 4(a)(1) was implicated when a U.S. fighter fired two missiles at an uncertain target in the Straits of Hormuz and a U.S. ship fired machine-gun rounds across the bows of approaching ships, replied that section 4(a)(1) did not apply because “it is not clear that an attack on U.S. forces was imminent, and in fact no such attack occurred.”  It is unclear why Fox thought this or whether his thought was based on a legal opinion.  He appears to have believed that the WPR was not implicated by sporadic attacks by the United States that were not reciprocated with a dangerous threat.  This is like the Obama administration argument, though of course the Libya intervention is a much lengthier and more violent confrontation in which many are killed. The Clinton administration said, in connection with the troops in Somalia, that “no previous Administration has considered that intermittent military engagements involving U.S. forces overseas, whether or not constituting ‘hostilities,’ would necessitate the withdrawal of such forces pursuant to section 5(b) of the Resolution,” because the 60-day limit “was intended to apply to sustained hostilities so as to ensure that the collective judgment of both Congress and the President would be applied to decisions about whether to go to war.”  Again, assuming this interpretation of the WPR is correct, it is a very large stretch to say that the total U.S. effort in Libya is intermittent and un-sustained. Finally, the 1995, 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.  These iterated reports might imply that “hostilities” had ceased after each strike and that the WPR clock restarted anew.  Even if this interpretation were correct, it would not apply here because (a) there have not been intermittent reports re-starting the clock, perhaps because (b) strikes here have been more or less continuous. In sum, even if we consider only U.S. kinetic actions in Libya, there is little to support the Administration’s interpretation of the term “hostilities” in the WPR, and much that cuts against it.  But is it appropriate to focus just on U.S. kinetic actions? II.     The Broader NATO Action One key to the Administration’s legal argument is to separate U.S. kinetic actions in Libya from the broader NATO action.  I have just explained why I believe that those U.S. kinetic actions, considered in isolation, are “hostilities” under the WPR.  But I do not think it is right to consider U.S. kinetic actions in isolation from the broader NATO effort. As Bobby noted, NATO’s Supreme Allied Commander, the person “responsible to NATO’s highest military authority, the Military Committee, for the conduct of all NATO military operations,” is Admiral James G. Stavridis of the U.S. Navy.  In other words, the officer in formal command of NATO military actions is a member of the U.S. Armed Forces.  Other members of the U.S. Armed Forces presumably work up and down NATO’s chain of command.  In addition, as the FT reported a few days ago, based on a DOD memo: “Although it is working under NATO, the US is by far the largest contributor to operation Unified Protector.”  The United States supplies a huge portion of the funding (approaching a billion dollars) and (at least through May) about 75% of reconnaissance and refueling missions, as well as other forms of support to the NATO effort in Libya.  Basically the U.S. Armed Forces are doing most of the heavy lifting in the conflict short of pulling all the triggers, and the triggers that are being pulled by non-U.S. military forces are technically the responsibility of a member of the U.S. Armed Forces.  In this light, it is quite natural to conclude that the transfer of authority to NATO brings members of the U.S. armed forces into responsibility for all NATO attacks on Libya, not just the ones fired by U.S. Forces. The language of the WPR supports this conclusion (but I do not think the language is necessary to this conclusion).  Section 8(c) provides: “For purposes of this joint resolution, the term ‘introduction of United States Armed Forces’ includes the assignment of member of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.”  (emphasis added).  This definition is relevant because is applies to the entire WPR and the WPR clock in Section 5(b) is tied to the introduction of U.S. Armed Forces into hostilities in Section 4(a)(1) and related reporting duties.  On its face this language describes exactly what is going on: the U.S. is assigning members of the U.S. Armed Forces to command and participate in the movement of the regular military forces of France, Great Britain, and other nations that are engaged in hostilities in Libya.  The fact that this command and participation happens via NATO seems irrelevant; the fact is that U.S. Armed Forces are helping those nations engage in military hostilities.  Thus both the reality of the heavy U.S. participation in the NATO effort, and the WPR attribution rule, suggest that the NATO actions should be viewed as the actions of U.S. Armed Forces for purposes of the WPR.  That would mean that the relevant bombing campaign for purposes of whether the U.S. is involved in “hostilities” is much broader and (because it involves NATO fighter jets and other forces, not just drones) more dangerous and more likely to lead to casualties than the drone attacks, considered in isolation. I think the administration thinks that Section 8(c) does not apply here, based on some legislative history.  I cannot find that history, but the plain text of the WPR suggests the reading above.  Moreover, while the term defined in Section 8(c) is “introduction of United States Armed Forces,” and while Section 4(a) speaks of “any case in which United States Armed Forces are introduced,” a later portion of Section 4(a), concerning reporting, makes clear that the two phrases are synonymous.  However, there is at least one problem with my Section 8(c) argument: It implies that the assignment of one or two U.S. military aides to a foreign military effort triggers the WPR.  Presumably this happens a lot without WPR reporting.  That said, U.S. Armed Forces involvement in the Libya operation is obviously significantly larger than one or two aides, and for reasons stated above, I think these broader actions are attributable to the United States under the WPR even without reference to Section 8(c). III.    Conclusion There may be more to the administration’s argument than I can glean from the one-paragraph statement and the Savage story.  But I doubt it, for if there were more, or something more persuasive, we would see a published legal opinion from the Department of Justice.  In that regard, perhaps the strangest element of Savage’s story is that the White House Counsel and the Legal Advisor to the State Department, and not the Office of Legal Counsel or some other DOJ representative, were explaining the administration’s legal theory to Charlie Savage.  Also strange was the fact that the White House counsel declined to talk about whether OLC agreed with the administration’s legal position.  More on this in the next post. Finally, I should note that while I think there are serious weaknesses in the Administration’s reasoning, I agree with Rick Pildes: “There is no clear legal answer.  The president is taking a position, so the question is whether Congress accepts that position, or doesn’t accept that position and wants to insist that the operation can’t continue without affirmative authorization from Congress.”  The WPR is an old statute filled with uncertainties.  There is no definitive judicial construction of it and little likelihood of judicial review.  The President is making an aggressive and narrowing interpretation of the statute.  Whether the interpretation succeeds will depend entirely on Congress’s reaction.  If Congress disagrees with the President’s construction, only it can vindicate its view.  It has plenty of tools to do so, but using the tools requires responsibility and fortitude, which Congress usually lacks.  We shall see. Update: Peter Spiro has related thoughts at Opinio Juris.  As does Ilya Somin at Volokh. * In the original post I erroneously stated that it was Secretary of State Shultz who made this claim.

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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