President Obama To Congress: War Powers Act Doesn’t Apply To Libya
Taking a position that is certain to raise eyebrows, the White House sent a response to Congress today regarding the request for further information about the military action in Libya that argues that the War Powers Act is inapplicable to current American involvement there:
WASHINGTON — The White House is telling Congress that President Obama has the legal authority to continue American participation in the NATO-led air war in Libya, even though lawmakers have not authorized it.
In a broader package of materials the Obama administration is sending to Congress on Wednesday defending its Libya policy, the White House, for the first time, offers lawmakers and the public an argument for why Mr. Obama has not been violating the War Powers Resolution since May 20.
On that day, the Vietnam-era law’s 60-day deadline for terminating unauthorized hostilities appeared to pass. But the White House argued that the activities of United States military forces in Libya do not amount to full-blown “hostilities” at the level necessary to involve the section of the War Powers Resolution that imposes the deadline.
“We are acting lawfully,” said Harold Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with White House Counsel Robert Bauer.
The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes — although unmanned drones operated by the United States periodically fire missiles as well.
They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians.
“We are not saying the president can take the country into war on his own,” Mr. Koh said. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”
The administration unveiled its argument at a time when members of Congress have shown increasing skepticism about the Libya operation. On June 3, the House of Representatives passed a resolution declaring that the mission had not been authorized.
It’s worth taking a look at what the War Powers Act actually requires, so let’s take a look at 50 USC 1543:
In the absence of a declaration of war, 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;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;
the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
50 USC 1544(b) then requires:
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, 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 the Congress
(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
The question then is whether United States United States military forces are still involved in “hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” There seems to be no real contention by anyone that American forces, or NATO forces for that matter, are actually on Libyan territory or in Libyan territorial waters. The Administration seems to be arguing that since there are no American ground troops and no American fighter planes involved in action over Libya, then the answer to that question is no. As John Cole notes, though, we are using Predator drones to launch missiles at Libyan target on an as-needed basis, so the idea that we’re completely off the grid on this mission isn’t entirely true.
However, is an unmanned drone controlled from hundreds, or thousands, miles away really “engaging in hostilities” within the meaning of the War Powers Act? What about launching cruise missiles from a ship in international waters, would that be outside the purview of the WPA as well? Heck, would launching an Intercontinental Ballistic Missile from a silo in North Dakota toward Tripoli be covered by the Act? The answer is unclear:
It remains to be seen whether majorities in Congress will accept the administration’s argument, defusing the confrontation, or whether the White House’s response will instead fuel greater criticism. Either way, because the War Powers Resolution does not include a definition of “hostilities” and the Supreme Court has never ruled on the issue, the legal debate is likely to be resolved politically, said Rick Pildes, a New York University law professor.
“There is no clear legal answer,” he said. “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.”
There’s also very little chance that the Courts will rule on this matter, for the reasons I discussed earlier today.
Of course, for the Obama Administration it’s not just a question of how Congress reacts, but also how the public reacts. A response like this could potentially be spun as the Administration trying to get around the requirements of the law by means of a technicality. The fact that we are still engaging in offensive action in Libya, albeit in a limited fashion that doesn’t endanger American forces, makes this kind of legal argument hard to sell — it’s a war they’re saying, but not a war war. That doesn’t strike me as something that’s going to play very well with the public, especially given how unpopular the Libya mission is to begin with.