In my previous post, I discussed the legal merits and some of the practical consequences of NATO’s intervention in Libya. The legal analysis in that post focused exclusively on international law. The intervention, however, also raised important questions under U.S. domestic law, the most prominent of which concerned the applicability of the War Powers Resolution. In this post, I’ll discuss some of the main arguments regarding the Resolution’s applicability, and one of the practical consequences of the Obama Administration’s approach to the issue.
The War Powers Resolution has three basic components, the first of which is a requirement of consultation. “In every possible instance,” it reads, the President must consult with Congress before introducing U.S. Armed Forces into “hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” and must consult regularly with Congress after introducing U.S. forces until they are no longer engaged in hostilities. The second component is a reporting requirement. In the absence of a declaration of war, the President must report to Congress on the circumstances, legal authority, and estimated scope and duration of “hostilities or involvement” in “any case” in which U.S. forces are introduced into “hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The third basic component is a congressional termination power: within sixty days after reporting to Congress, the President must terminate any use of the U.S. forces, unless Congress (1) “has declared war or has enacted a specific authorization for such use”; (2) “has extended by law [the] sixty-day period”; or (3) “is physically unable to meet as a result of an armed attack upon the United States.” The President can extend the sixty-day period, but only in limited circumstances and for no more than thirty days.
The Obama Administration did not consult with or report to Congress on Libya under the terms of the War Powers Resolution. Rather, the Administration argued that the Resolution and its requirements did not apply because the U.S. involvement in Libya did not amount to “hostilities.” This position primarily rested on the relatively limited nature of the U.S. role, which entailed airstrikes during the early phase of the conflict, and then occasional drone strikes and the provision of surveillance, refueling and other logistical assistance to the forces of other NATO members thereafter. “Hostilities,” in the Administration’s view, requires something more substantial.
I am not necessarily persuaded; the ordinary meaning of “hostilities” seems to encompass the operations that U.S. forces carried out in Libya. The United States and its NATO allies used both manned and unmanned military aircraft to bomb significant numbers of military targets, and in doing so played a critical role in facilitating the Libyan rebels’ victory over Gaddafi and his supporters. Most would regard such conduct as hostile acts. Of course, the War Powers Resolution could in theory use “hostilities” as a term of art that carries some sort of non-ordinary meaning. But there is no textual evidence that it does. There is no statutory definition, for example, that would justify a departure from ordinary meaning. If Congress had intended the Resolution to apply only where U.S. forces are directly engaged in combat on a significant scale, it could have easily used more precise language.
Whatever its merits as a matter of statutory interpretation, the Administration’s position is significant for the way in which marginalizes the role of Congress in small- and even medium-scale warfare. If drone strikes and limited bombing campaigns by manned aircraft do not amount to “hostilities,” then the President can use some of the most important tools in modern warfare with little regard for congressional approval. To some, this development is necessary for national security. To others, it presents an accountability problem.