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

by Peter Spiro

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.

http://opiniojuris.org/2011/06/16/latest-on-war-powers-and-libya-resurrecting-the-wpr-probably-not/

14 Responses

  1. Response…
    This argument seems a bit complex and legally ignorant in several respects.  Of course, the better view is on JURIST.
    http://jurist.org/forum/2011/05/jordan-paust-libya-war-powers.php
    The magic word is “hostilities” — and, of course we are directly involved in “hostilities” authorized by the UN SC and we are directly and unavoidably involved in an international armed conflict to which the laws of war apply.  If the Obama Administration was not tunnel visioned re: the response to congressional critics it might have contemplated whether the pilots who were shot down and had “boots on the ground” could have been pows if captured and “combatants” with “combatant immunity” for lawful acts of war during an international armed conflict and, yes, “hostilities”!
    The President’s competence in this regard hinges on the Executive power and the duty faithfully to execute treaty law of the United States — see the JURIST op ed.

  2. Response…
    p.s.  Kosovo fits within the recognitions in the JURIST op ed as well.
    And here’s another question for the Administration — how can you be at “war” with al Qaeda and not with Libya?

  3. Wow, these arguments are John Yoo and Jay Bybee kind of smart, and well beyond! Decriminalization of aggression in full swing, accomplished by the Democrats this time–the true bipartisan imperialism at work.

  4. Response…
    @JordanPaust

    How can you claim in JURIST that “the President has faithfully executed provisions of the UN Charter,” when the Resolution 1973 is not even being adhered to by the US-lead NATO actions in Libya?

  5. Response…
    The President’s “Legal Analysis” in the report states:
    “operations are both ligitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force…” in certain respects.
    A NEW point — a reporter “told” me by email that when Harold Koh, for example, was asked whether it would be a “war” crime if a drone operator deliberately targeted civilian, the answer was yes because under int’l law the laws of war apply to this U.S. use of force.
    Don’t we use such international law as background for interpreting a federal statute (or joint resolution)?  The Charming Betsy, U.S. 1804.

  6. Response…
    p.s.  Not only Charming Betsy, but Bas v. Tingy (U.S. 1800) seem on point regarding interpretation of a federal statute and the meaning of words such as “enemy,” “war” (limited and general), and “hostility” or “hostilities.”
    Presumably congresspersons had Bas v. Tingy in mind when drafting the WPR.

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    For a definition of war, one might go back closer to the founders’ time… say to Johnson’s or Webster’s definitions for war. Johnson’s, which is quite serviceable, “The exercise of violence under sovereign command against withstanders.”

  8. I apologize for the computer gibberish which precedes the quote. I thought I was doing a simple copy and paste. Thank goodness I am not responsible for operating a drone or I would have murdered all of someplace in Pakistan.

  9. Steve,

    ‘mudered’? Surely only manslaughter.

  10. Thanks for reminding us of that clear definition of “war” from Samuel Johnson’s founding-era dictionary, SteveL.
     
    Michael Ramsey, right here at opiniojuris.org in late March, drew on Johnson’s definition while outlining President Obama’s lawless ‘exercise of violence under [presidential (since we, the sovereign people of this nation, did not authorize this violence)] command against [Libyan] withstanders‘:



    Does the Libya intervention amount to a “war” in constitutional terms?  Samuel Johnson’s influential 18th century dictionary defined “war” broadly as “the exercise of violence under sovereign command, against withstanders.” International law writers of the time expressed similarly expansive definitions. Although there are surely borderline cases, our use of force against Libya easily qualifies: the opponent is the Libya government, and our objective is to use “violence under sovereign command” to force that government to change course.  

    The fact that our use of force is limited to air strikes should not matter. Limited wars were well-known in the 18th century (Britain and France fought a limited war at sea and in North America during the American Revolution). The U.S. fought two limited wars early in its history, against France beginning in 1798 and against Tripoli in 1801. So far as I know, every person commenting on these events at the time thought that Congress had to authorize any initiation of force, even limited naval attacks. (In 1801, Hamilton argued that authorization wasn’t needed because Tripoli, not the U.S., began the war; but he agreed that congressional authorization would otherwise be necessary even in the context of an attack on a single Tripoli warship.)

    Thus the founding generation thought the Constitution reserved war-initiation power to Congress. How could this be, though, if Congress has only the power to “declare War”, which we may think refers to making a (now-outmoded) formal announcement? Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?

    The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities. John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.” Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way. Vattel wrote: “When one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.” Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks. (References are found in my Chicago Law Review article, Part III; for a more comprehensive account, see this outstanding article by Saikrishna Prakash). Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war.



    Barack Obama, Harold Koh, and Bob Bauer, under the same failed-laugh-test standard of “legal analysis,” might just as well have argued Wednesday that – since the President deliberately failed to take care to receive the necessary authorization from a majority of members of Congress (representatives of the nation’s “sovereign” people) before exercising armed force violence against Libyan withstanders – the exercised U.S. violence against Libya’s military assets was and is “not a war” under the Johnson definition (or “not hostilities” under the war-power-implementing War Powers Resolution), because only the non-sovereign U.S. President is exercising that violence, rather than the “sovereign” people of the United States. “Audacious” chutzpah doesn’t begin to describe such contemptible claims.  

  11. Response…
    For another relevant definition of “war,” especially since it is in a rather famous Supreme Court case on the war powers (which those who have taught Constitutional Law might have known about except for the fact that most conlaw profs. don’t teach war powers and foreign affairs powers), is in Bas v. Tingy (U.S. 1800), along with attention to “hostillities” that seriously undermines the main leg of the Obama interpretation of “hostilities” under the WPR — so Obama should shift to the bases that exist with respect to the Executive power and the faithful execution of treaty law power as noted in the Jurist op ed. 

  12. Are we at war with Somalia, too, by Stephen Walt’s and above commenters’ standards?

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