Harold Koh's written testimony in connection with today's SFRC hearing on the WPR and Libya is now available. [Update: Testimony from Lou Fisher is here. Testimony from Peter Spiro is here.] It is much the same as the oral presentation this morning, of course, including the emphasis on four conditions of constraint that undergird the analysis that Operation Unified Protector is not "hostilities" in the WPR sense of that word. Two key points of further elaboration are worth highlighting, however, because both are important to the current debate yet neither got a good airing earlier.
On whether Congress intended "hostilities" to be at least as broad as, if not broader than, the meaning of "armed conflict":
In footnote 6 (p.5), Koh writes:
We recognize that the House report suggested that “[t]he word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope,” but the report provided no clear direction on what either term was understood to mean. H.R. REP. NO. 93-287, at 7 (1973)...
I'm underwhelmed by this argument, given the substantial body of law exploring the meaning of "armed conflict,"which is a phrase of great significance for, well, the law of armed conflit. Obviously there are disputes on the margins about the scope of the concept, but this is much more the case as to non-international conflicts than international ones (though I suppose at this point we should ponder whether the "suspension" of our recognition of Qaddafi's regime changes the status of this conflict). In any event, is there any doubt that the circumstances in Libya entail armed conflit implicating LOAC? Even if one set aside the activities of the Libyan forces and the other NATO forces, in fact, wouldn't are kinetic operations, however limited, suffice to cross this threshold? (Note: If you answer no to that question, then you might have to give the same answer with respect to whether the degree of violence as between the US and AQAP (separate and apart from al Qaeda itself) suffices to implicate LOAC). If so, adopting the House report position would seem to mandate the conclusion that the U.S. is involved in hostilities in the WPR sense. Of course, one can always argue that the House Report should not control in any event....
On whether WPR Section 8(c) makes the "hostilities" question beside the point:
I was surprised this was not discussed this morning, and glad to see it addressed in footnote 13 on p. 8. Here is the problem. Section 8(c) of the WPR (50 USC 1547(c)) provides:
(c) Introduction of United States Armed Forces
For purposes of this chapter, the term “introduction of United States Armed Forces” includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.
This presents a problem for the Administration because U.S. personnel arguably "command...forces of any foreign country...engaged...in hostilities" via NATO. That is, if the French and British unquestionably are engaged in hostilities under NATO command, with a U.S. officer atop that chain of command, 8(c) appears to categorize this as equivalent to introduction of U.S. armed forces into hostilities for WPR purposes. As to this argument, Koh responds:
A definitional section of the War Powers Resolution, 8(c), gives rise to a duty of Congressional notification, but not termination, upon the “assignment” of U.S. forces to command, coordinate, participate in the movement of, or accompany foreign forces that are themselves in hostilities. Section 8(c) is textually linked (through the term “introduction of United States Armed Forces”) not to the “hostilities” language in section 4 that triggers the automatic pullout provision in section 5(b), but rather, to a different clause later down in that section that triggers a reporting requirement. According to the Senate report, the purpose of section 8(c) was “to prevent secret, unauthorized military support activities [such as the secret assignment of U.S. military 'advisers' to South Vietnam and Laos] and to prevent a repetition of many of the most controversial and regrettable actions in Indochina,” S.REP. NO. 93-220, at 24 (1973)—actions that scarcely resemble NATO operations such as this one. Indeed, absurd results could ensue if section 8(c) were read to trigger the 60-day clock, as that could require termination of the“assignment” of even a single member of the U.S. military to assist a foreign government force, unless Congress passed legislation to authorize that one-person assignment. Moreover, section 8(c) must be read together with the immediately preceding section of the Resolution, 8(b). By grandfathering in pre-existing “high-level military commands,” section 8(b) not only shows that Congress knew how to reference NATO operations when it wanted to, but also suggests that Congress recognized that NATO operations are generally less likely to raise the kinds of policy concerns that animated the Resolution. If anything, the international framework of cooperation within which this military mission is taking place creates a far greater risk that by withdrawing prematurely from Libya, as opposed to staying the course, we would generate the very foreign policy problems that the War Powers Resolution was meant to counteract: for example, international condemnation and strained relationships with key allies.
This is a pretty effective response to an argument that I had previously thought was rather damaging. Do readers see any flaws in it?