President Obama has sent 39 letters to Congress “consistent with” the War Powers Resolution requirements. The letters are a fascinating read and provide a 30,000-foot view of the Administration’s use of military force abroad. The complete letters are linked below, but here is a brief analysis:
A Wider Battlefield
The reports reflect what appears to be a much wider battlefield today than in 2009.
In 2009, the consolidated reports explicitly reference operations and deployments in only four countries (Afghanistan, Iraq, Cuba, and Kosovo) and in the “Horn of Africa region.” However, the President also reported – as he has in every biannual report since – that the United States “has deployed various combat-equipped forces to a number of locations in the Central, Pacific, European, Southern, and Africa Command areas of operation in support of [Afghanistan] operations and other overseas operations.” Similar language appeared in biannual Bush administration WPR letters beginning in 2004, although President Bush described the deployments as “in support of … other operations in our global war on terror.” It is unclear if this boilerplate language is merely a historical reference to the breadth of operations taken under the AUMF, or whether it is meant to reflect deployments of combat-equipped forces to places beyond the listed locations during the reporting period, perhaps including those reported in classified letters.
Over the course of the next six years, the Administration notified Congress of deployments to several other countries, both in individual reports and in the consolidated reports. Those countries include: Djibouti, Libya, Uganda, South Sudan, the Democratic Republic of the Congo, the Central African Republic, Somalia, Yemen, Chad, Niger, Jordan, Tunisia, Syria, Cameroon, and Turkey.
The most recent report, from December 2015, explicitly refers to ongoing operations of variable intensity in 14 countries: Afghanistan, Iraq, Syria, Turkey, Somalia, Yemen, Djibouti, Libya, Cuba, Niger, Cameroon, Egypt, Jordan, and Kosovo. The report also references activities in “various countries in the central African region” related to efforts to defeat the Lord’s Resistance Army (LRA). Earlier reports on the LRA indicated deployments to Uganda, South Sudan, the Democratic Republic of the Congo, and the Central African Republic, but, the letter says these details are now relegated to a classified annex. This report, like the 2009 report, refers to deployments “to a number of locations” that are “in support of” antiterrorism and “other overseas operations.” The 2015 report also refers to “further information” in a “classified annex.”
It is impossible to say with certainty how broad the battlefield is, because (1) the nature and scope of deployments “in support of” operations in Afghanistan and “other overseas operations” remain obscure, and (2) we do not have access to the contents of the classified annexes that begin in 2010 (more on this below). In part, then, the increase in the number of countries may reflect more detailed reporting, in addition to a substantive expansion of the battlefield. But based on what the letters say explicitly, it would seem that the battlefield has expanded significantly.
In addition to more detail, the length of the reports has also increased. The four consolidated reports from 2009 and 2010 averaged 1250 words. The four most recent consolidated reports, from 2014 and 2015, averaged 1915 words – an increase of over 50%.
Detention Operations and the Law of War
The interplay between detention operations and the laws of war has been described differently over time.
- In June 2009, President Obama reported that detention operations at Guantanamo were “consistent with the law of war.”
- From December 2009 until December 2011, President Obama reported detention operations that were “consistent with principles of the law of war.”
- In June 2012 and December 2012, detention operations in Cuba continued to be “consistent with principles of the law of war,” but detention operations in Afghanistan were described as authorized under the AUMF “as informed by the law of war.”
- Since the June 2013 letter, detention operations in both Cuba and Afghanistan have been described as authorized by the AUMF “as informed by the law of war.”
In December 2010, the letter for the first time references a “classified annex.” It is unclear if an unacknowledged annex existed prior to this date. However, a classified annex has been referenced in every biannual report since.
There may also be, in addition to the classified annexes, entire classified reports. The June 14, 2013 letter references a “report of January 28, 2013.” This report is not publicly available and may be classified; the report is also omitted from a 2015 CRS Report identifying all WPR letters. The January 2013 report apparently detailed the capture of ship smuggling Iranian arms to Yemen. This incident was widely covered at the time, although the scope of U.S. involvement was unclear.
Shifting Authority for ISIL Operations
President Obama shifted his purported authority for operations against ISIL over time. The initial deployments in to Iraq in June 2014 were focused on protecting the U.S. embassy. They were grounded in the President’s “responsibility to protect U.S. citizens both at home and abroad,” and made “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”
By the end of August and early September, as ISIL rapidly advanced toward Baghdad and U.S. forces engaged them, President Obama justified his actions as “in the national security and foreign policy interests of the United States,” and made “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”
On September 23, 2014, President Obama, for the first time in a WPR letter, invoked his statutory authority under the both 2001 AUMF and the 2002 Iraq AUMF to support operations against ISIL in Iraq and his authority under the 2001 AUMF for actions in Syria.
This shift may be related to the WPR’s 60-day limit on non-Congressionally authorized “hostilities.” As Jack noted in 2014, the Obama administration adopted an unusual approach to WPR reporting in the initial stages of its campaign against ISIL.
In the four months from June 2014 through September 8, 2014, President Obama sent eight separate § 4(a) reports to Congress related to operations against ISIL. All of these reports rested on the President’s Article II authority alone.
Jack posited that this might be a lawyer’s trick to avoid the 60-day limit on non-authorized “hostilities” by treating each mission as a discrete hostility that lasts less than 60 days. Such a maneuver, if it was that, became unnecessary once the administration shifted its rationale for the use of force against ISIL from Article II to the AUMF, as reflected in the September 23, 2014 WPR letter. With this new legal rationale, the Administration had deemed the use of force against ISIL to be authorized by Congress and that no further discrete WPR letters were necessary.
War Powers Resolution Letters Submitted to Congress by President Obama
- Libya - 3/21/2011
- Consolidated Report - 6/15/2011
- Lord’s Resistance Army - 10/14/2011
- Consolidated Report - 12/15/2011
- Somalia - 1/26/2012
- Consolidated Report - 6/15/2012
- Libya and Yemen - 9/14/2012
- Consolidated Report - 12/14/2012
- Chad - 12/29/2012
- Somalia - 1/13/2013
- Niger - 2/22/2013
- Consolidated Report - 6/14/2013
- Jordan - 6/21/2013
- Consolidated Report - 12/13/2013
- South Sudan - 12/19/2013
- South Sudan - 12/22/2013
- Lord’s Resistance Army - 3/25/2014
- Chad – 5/21/2014
- Consolidated Report - 6/12/2014
- Iraq - 6/16/2014
- Iraq - 6/26/2014
- Iraq - 6/30/2014
- Libya - 7/27/2014
- Iraq - 8/8/2014
- Iraq - 8/17/2014
- Iraq - 9/1/2014
- Iraq - 9/5/2014
- Iraq - 9/8/2014
- Central African Republic - 9/11/2014
- Iraq - 9/23/2014
- Syria - 9/23/2014
- Consolidated Report - 12/11/2014