Latest on War Powers and Libya: Resurrecting the WPR? (Probably Not)

Here is the Administration’s legal analysis (in full) of why the 60/90-day clock of the War Powers Resolution doesn’t apply to the continuing Libya operation:

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.

More background from Charlie Savage here.

From a tactical perspective, this may be the wisest course.  The other options were: 1) remain silent on how/whether the War Powers Act does or does not constrain the Libya operation — which has been the Administration’s approach to date — or 2) make a broader claim that the Act’s termination provision is unconstitutional.  The first may have been unsustainable as Congress ramped up its criticism of the operation and used putative noncompliance with the WPR as a battering ram.  I wonder if there was any consideration of the second — on the merits it may be the stronger argument –, but it’s easy to see why it would be rejected: institutionally too confrontational and also likely to draw heavy fire from the already unhappy Left.

The Administration’s more minimalist approach nonetheless marks an important juncture in war powers practice.  We could go either of two ways from here. If there are some operations that comprise “hostilities” for purposes of the WPR but wouldn’t count as “war” for constitutional purposes, the Administration’s approach is problematic from an executive power perspective.  Is there a concession of constitutionality?  (Harold Koh: “We are not saying that the [WPR] is unconstitutional” – not quite the same thing as saying “we think it’s constitutional,” but getting there.)  Would there be cases in which the WPR might affect military decisionmaking — hostilities which are terminated or downgraded which but for the WPR would otherwise continue?

On the other hand, this could be yet another nail in the WPR’s coffin.  If “hostilities” are defined so as to include only really serious military engagements — ones that require advance congressional authorization as a constitutional matter in any case — then the WPR remains superfluous.

One way to think about it: how does the Administration’s approach retrofit onto the Kosovo campaign.  Assume no congressional funding there that could (and was claimed to) constitute specific authorization.  Would that operation comprise “hostilities” under the Act under Obama’s definition above?  Probably not.  Can we imagine some other presidentially initiated engagement which is constrained under this approach?  I’m not sure we can.  Which may be another way of saying that the Resolution is still dead after all.

Update: Jack Goldsmith has a detailed critique of this latest move here.

Update: I’m starting to wonder if the “hostilities” argument might actually be drawing more fire than a claim of unconstitutionality — see Stephen Walt here, for example.