War Powers

Adjusting Operations in Libya to Suit the WPR Clock

By Robert Chesney
Friday, May 13, 2011, 10:20 AM

Charlie Savage has the goods this morning regarding the administration's potential responses to the looming expiration of the 60-day WPR clock in connection with the war in Libya.  It's a must-read piece for those following this issue, suggesting that the Obama Administration (i) will not flout the WPR's 60-day clock (for example, by asserting that the President cannot constitutionally be constrained in this way) and (ii) will instead adjust operations in Libya in such a way as to support the claim that the 60-day clock is no longer running.  The article describes two ideas currently under consideration to achieve the latter purpose.  One is to halt armed drone attacks, thus limiting all US operations to ISR, logistical coordination, electronic warfare, and other support functions.  The other is to halt all US operations altogether for a temporary period, and then asserting that the clock should start from scratch when operations later resume.   Interestingly, the article does not suggest that the lawyers are giving serious consideration to arguing instead that the use of armed drones simply does not constitute the involvement of "United States armed forces" in hostilities in the first place, which is not an argument that appeals to me but that has been talked about a bit in recent weeks on the theory that the WPR is especially concerned with situations in which there are US servicemembers personally in danger.

So, what to make of the two arguments that are floated in Charlie's piece?

The latter option--i.e., suspend-all-operations-period--is bad from both a legal and a policy perspective, if you ask me.  It's bad legally insofar as the operational pause is a conceded fiction ("The administration apparently has no intention of pulling out of the Libya campaign," Charlie writes...), in contrast to a situation in which our participation in hostilities stops and it truly is not clear whether we will resume that participation.  And it is bad from a policy perspective because, I am assuming, an actual suspension of US-provided ISR, e-warfare, logistical support, and so forth, would greatly hobble the NATO effort at a time in which the rebels are just beginning to find their footing with the aid of enhanced close-air support (I could be wrong about those consequences, but if I'm correct then it seems to me that this option comes with a pretty high price tag in terms of lost momentum, or worse).

The former option is the better of the two (see here for my earlier take on this rationale), assuming that this is not also a complete fiction.  That is, I think the argument is a defensible one if in fact we are reverting to a mere-support role, with no specific expectation of resuming drone strikes after a brief respite meant merely to turn off the clock.  That said, it's not an obviously correct argument.  There is still plenty of room for debate as to what degree of involvement in hostilities implicates the WPR's notice requirement and what degree of retrenchment suffices to stop the clock.