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Tick, Tock….Libya, the FY12 NDA Bill, and the Looming War Powers Resolution Deadline

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Monday, May 9, 2011 at 4:25 PM

As we’ve noted on this blog previously (here and here), continued U.S. involvement in hostilities in Libya in the absence of Congressional authorization might oblige the administration to take a position regarding § 5(b) of the War Powers Resolution, which calls for the President to “terminate” the use of armed forces within a certain number of days if Congress has not expressly authorized the deployment or at least extended the WPR deadline for doing so. 

It seemed for a time that the administration might avoid this issue by reverting to a mere offshore logistical support role in relation to the military actions of others in Libya. That is, one could argue that such a shift would constitute the termination of the U.S. deployment into hostilities required by the WPR should the deadline pass without an extension or an authorization.  It seems clear to me, however, that one can no longer make such an argument in light of the late April decision to deploy armed drones to engage in close air support and similar combat operations.

By way of counterargument, the administration might contend that the period between the end of the initial wave of U.S. combat operations in Libya and the subsequent drone deployment was sufficient at least to restart the WPR clock.  That move has some logic to it, but also the obvious downside that the administration could always avoid running afoul of the WPR clock simply by shifting back into a reserve mode for a few days or weeks at a time.

Alternatively, the administration might make the much bolder claim that even with Predators killing Libyan troops, U.S. armed forces technically are not engaged in or deployed into hostilities within the meaning of the WPR because, well, no actual U.S. servicemembers are operating in Libyan territory or airspace.  This move presumably would seize on the idea that the WPR is motivated in no small part by fear that once boots are on the ground, they may be attacked and it may then become impossible not to sustain or even increase the U.S. commitment (though Beirut and Somalia stand as counterexamples), and in any event that Congressional participation in the decision to use force is most pressing where the lives of our soldiers are most clearly at risk. On that view, the U.S. military can fight in a theater with drones (and cruise missiles, and any other stand-off or over-the-horizon technology for that matter) without actually being deployed into that theater.  But I find this hard to swallow.  The aforementioned motiviations for the WPR no doubt mattered, but so too did the larger idea that Congress should participate in the decision to become involved in armed conflict (especially where self-defense is not in issue).  And legislative intentions aside, it simply strikes me as an unduly strained reading of the text to construe “U.S. armed forces” to include only personnel and not our (increasingly disintermediated) arms and equipment.

Might the administration avoid all of this without terminating drone operations in Libya?  The Clinton Administration avoided the WPR clock issue in 2000, in connection with Kosovo, by advancing the argument that a 1999 emergency supplemental appropriation for Kosovo operations provided the explicit legislative approval WPR § 5(b) requires.  Might there be something in the FY12 National Defense Authorization bill, to which Ben linked below, that might similarly short-circuit the WPR § 5(b) issue as to Libya?  (I’m doubtful that the bill willbecome law in time to really make a difference, except by way of ex post ratification, but let’s assume for the sake of argument that it does.)

The case is weaker here than it was in connection with the Kosovo supplemental appropriation.  The FY12 NDAA makes only one express reference to operations in Libya.  It appears in Title XII (“Matters Relating to Foreign Nations”), under the heading “Report on Deployment of Assets and Personnel to Libya”:

The committee directs the Secretary of Defense to notify the Senate Committee on Armed Services and the House Committee on Armed Services upon making a decision to task any asset of the Department of Defense (DOD) to Libya, if such asset is currently tasked to support ongoing contingency operations in Afghanistan or Iraq. Any such notification must be submitted no later than 72 hours after the redeployment or tasking of a DOD asset in support of Operation Odyssey Dawn or Operation Unified Protector. Such a notification should include at a minimum the number and type of assets and associated personnel transferred from supporting operations in Afghanistan or Iraq to supporting operations in Libya, including but not limited to: Intelligence, Surveillance, and Reconnaissance (ISR) assets; close air support assets (to include unmanned platforms); aerial refueling assets; and the diversion of any logistical or other resources used to support operations in Afghanistan or Iraq.

The Secretary of Defense is further directed to report the deployment of any U.S. military personnel or Department of Defense civilians to sovereign Libyan territory, whether held by government or rebel forces.

On one hand, this language obviously contemplates the existence of an ongoing U.S. military role in Libya, and one that is not limited to logistical support (note the reference to the use of armed drones for close air support).  On the other hand, the section is studiously neutral in its reference to the U.S. role in Libya, and of course the thrust of the section is merely to ensure Congress is kept informed (albeit only insofar as asset-transfers come at the expense of operations in Afghanistan or Iraq).  The most one can say, I think, is that this would be a much slimmer reed upon which to rely than the emergency supplemental appropriation from 1999.

Well, what about outright funding for Libya in this bill?  I’m no expert in parsing an authorization act, but my loose sense is that operations in Afghanistan, Pakistan, Iraq, and so forth are covered primarily by Operation and Maintenance for Overseas Contingency Operations (§4302) (in addition of course to ubiquitous supplemental appropriations), without specification as to particular operations.  Please correct me if that’s not right, and I’ll update this.  If it is correct, however, then it leaves the question at hand rather muddled: operations in Libya could be paid for out of such funds as well, while leaving the question of Congress’s intent on that point subject to some debate.

All of which suggests that we may indeed be heading towards a major separation-of-powers dispute as the WPR clock continues to tick.