OLC’s Libya memorandum (see here for Jack’s assessment, and here for a point-by-point overview) concludes as a matter of constitutional law that President Obama did not need approval from Congress in order to use force in Libya as we have done over the past few weeks. The memorandum does not address a distinct question that looms on the horizon, however. What happens, in light of the War Powers Resolution, if we remain involved in Libya several months from now and Congress does not in the interim enact some form of authorization?
The question arises because § 5(b) of the WPR famously provides that:
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress
(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States.
Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
Writing yesterday at Foreign Policy, Bruce Ackerman and Oona Hathaway note that U.S. involvement in Libya seems likely to last beyond this deadline, raising the question whether the administration will seek explicit authorization or instead simply flout the statute. An argument can be made, however, that the administration already has “terminated” its involvement in Libya as that term is used in the WPR, or at least that it soon will do so, despite lingering U.S. military involvement in a supporting capacity.
Before explaining that argument, it is worth noting that the administration can largely sidestep the WPR clock should it obtain a supplemental appropriation to fund Libya-related operations (a possibility that Ackerman and Hathaway reference but do not necessarily endorse). While there are those who would argue that an appropriation cannot suffice under § 5(b), the Clinton Administration nonetheless rested on this argument in relation to its air campaign against Serbia, as reflected in this OLC memorandum from 2000, and I assume the current administration would rely on that precedent. But given the current budget climate and lingering debate about the policy merits of intervention in Libya, perhaps no supplemental appropriation will be forthcoming. Could the administration argue instead that it already has “terminated” U.S. military involvement in Libya, as that term is used in § 5(b)?
As readers no doubt are aware, the U.S. military has played a variety of roles in relation to the allied military intervention: missile and airstrikes to suppress Libya’s air-defense and command-and-control systems, airstrikes directed at Libyan ground forces, electronic warfare (jamming the communications of pro-Gaddafi forces, for example), and a vast array of logistical support activities that help make possible the military activities of other participating states. And as readers also no doubt are aware, the administration has been at pains to transition from an emphasis on the first two categories mentioned above to an emphasis on the latter activities. And so a tricky question of statutory interpretation may arise: If U.S. forces truly cease to participate directly in missile and airstrikes, but continue to engage in logistical support and electronic warfare activities in support of the ongoing participation of other states, does this count as “termination” within the meaning of §5(b)?
I think reasonable people can disagree about the best reading of “terminate” in this context. As noted above, the precise statutory obligation is to terminate the use of U.S. forces “with respect to which” a WPR report was submitted pursuant to § 4(a)(1)—not § 4(a)(2) or (3), but just § 4(a)(1). A plausible reading of this language is that termination occurs when the role of U.S. forces becomes such that it would not have triggered the § 4(a)(1) reporting requirement (even if this role would have triggered a reporting requirement under § 4(a)(2) or (3)). And when is § 4(a)(1) triggered? When U.S. forces
are introduced...into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
The tricky interpretive question, on this view, is what counts as being introduced into hostilities. OLC addressed this question to some extent in its 1980 opinion “Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization” (which does not seem to be floating around online anywhere, for some reason, but is in Westlaw at 4A U.S. Op. Off. Legal Counsel 185). Drawing on the legislative history, OLC wrote that:
Chairman Zablocki then requested the views of the Departments of State and Defense regarding the Executive's interpretation of the term ‘hostilities' in view of the language quoted above. Those Departments responded in a letter to the Chairman dated June 5, 1975, reprinted in War Powers: A Test of Compliance at 38–40. After first noting that ‘hostilities' is ‘definable in a meaningful way only in the context of an actual set of facts,’ the letter went on to state that, as applied by the Executive, the term included:
“a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces, and ‘imminent hostilities' was considered to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces. In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area.”
On one hand, OLC was not then addressing a fact pattern in which there is sustained high-intensity conflict yet only indirect U.S. support for the involvement of others. On the other hand, the emphasis on whether U.S. forces are “engaged in exchanges of fire with opposing units,” or are likely to become so, provides at least some ground for arguing that reversion to a mere support role for ongoing air operations in Libya conducted by others would suffice to remove the situation from the reach of § 4(a)(1), at least so long as there is no realistic possibility of U.S. forces coming under enemy fire (query whether U.S. provision of search-and-rescue capacities would preclude this; query also how well the kinetically-oriented approach just described maps on to any cyberops that may be underway).
Of course, it will be hard to take advantage of this line of argument if tactical necessity obliges the United States to again participate directly in airstrikes. Note, in that regard, the increasing pressure on the administration to authorize the use of A-10s and AC-130s for the kind of low-altitude precision airstrikes needed to counter efforts by Gaddafi’s forces to escape bombardment by hiding amongst civilians—a capacity that our allies apparently cannot bring to bear. In this way the statutory framework reinforces the domestic political pressure to offload combat responsibilities to other states, while diplomatic pressures and considerations of actual military necessity to some degree push the other way. Then again, should the latter pressures prevail, the administration might then simply argue that an episodic re-introduction of U.S. forces directly into the hostilities would not disprove the claim of an earlier “termination,” but rather would just restart the § 5(b) clock from day one (with “termination” again occurring as soon as we revert to a merely supporting role).
A final note: none of this has any bearing on the CIA. The WPR’s termination requirement speaks only to “United States Armed Forces.”