Executive Power

An Overview of Harold Koh's Testimony on the WPR at Today's SFRC Hearing

By Robert Chesney
Tuesday, June 28, 2011, 11:48 AM

For the benefit of those who could not watch the SFRC hearing this morning on Libya and the WPR, here are highlights from the oral testimony from State Department Legal Advisor Harold Koh (the written testimony is not yet publicly available, but we will post it shortly).

Koh's opening statement:

The word "hostilities," which is the trigger for the 60-day clock, is an "ambiguous term of art" that was not defined in the WPR, and the legislative history on the point is indeterminate.  The word is not to be construed just by reference to dictionaries, but in no small part through historical practice.

Four limitations combine to make the "Libya Mission" something other than hostilities in the WPR sense:

1) The limited nature of the mission: this is a UNSC-approved mission for limited goals, led by NATO, with widespread international support.

2) Exposure of our armed forces is limited: since moving to the NATO support role, no casualties or serious risk of them

3) Risk of escalation is limited: in contrast to, say, Desert Shield/Storm.  No ground presence, no likelihood of expanding geographic scope.

4) Using only limited military means, short of the "full military engagement" with which the WPR is concerned.  Yes there are kinetic operations still occuring, but they are a far cry from, say, U.S. air operations in the Balkans in the 1990s.  90% of kinetic strikes are by other countries (meaning 10% are by U.S. armed forces).

The combination of these four makes this not hostilities; the answer might be otherwise if any of the four were not present.  Note that Libya is certainly far from the paradigm case (Vietnam) with which the 1973 Congress was concerned.

From the subsequent Q&A:

In response to questioning from Senator Lugar:

The Administration is not challenging the constitutionality of the WPR.

Koh first testified about the WPR in 1991, in regards to Desert Shield.  He said then, and still thinks today, that with a ground deployment on that scale, the WPR applied notwithstanding the existence of a UNSC resolution.  The resolution alone is not enough to make the situation not hostilities for WPR purposes.  The difference here is the limited nature of the U.S. role, including the lack of risk of casualties or escalation.

Drones don't get a free pass under the WPR, as a categorical matter.  That said, the statute is about the introduction of "U.S. armed forces," and it is "not clear" that this applies to drones, or to other technologies coming "into play" such as cyberspace technologies.  The WPR might need to be updated to account for this.

In response to questioning from Senator Casey:

Regarding kinetic operations aside from our involvement in support operations: on an "as needed" basis we are available to conduct strikes on air defenses, and then in some circumstances we have unique capacities to reach targets such as certain command-and-control locations.  We fly only 10% of the air sorties involving strikes.  The total ordinance dropped by us is less than 1% of the amount dropped in Kosovo, where there had been debate on this same issue.

"Hostilities" has been defined over time by executive and congressional practice in a way that does not apply here because of the four constraining conditions identified above. "If any of those elements are not present, none of what I've said necessarily applies.  You'd have to redo the analysis."

Of course he is "concerned about the precedent" and its potential impact on separation of powers.  But as he wrote in the National Security Constitution, the automatic pull-out provision has long been problematic in that it risked forcing the withdrawal of forces in circumstances in which this could precipitate atrocities.  That said, the administration is not denying the constitutionality of the WPR or saying the WPR "should be scrapped.

In response to questioning from Senator Corker:

Was it an error not to come to Congress earlier?  Things have not turned out as "some would have expected."  He perhaps would have supported more briefings, including on the legal positions, earlier.  The Senate could of course act today, if it wished, to express its views on the issue.

In response to the suggestion that we could nuke Tripoli and not have that be "hostilities" under the WPR, or that we could have Predator strikes "in any place in the world" without it being hostilities: "That's not what I'm arguing.  If predator strikes were at a particular level, or if we were carpet bombing a country using predators, that would be a very different situation."  But that's not the situation in Libya; there, Predators are used to take out particular kinds of assets the regime is using to harm civilians.  The four limitations cited above combine to bring the Libya mission outside the "hostilities" definition.  If you lack all four conditions, all bets are off.

Corker then criticized Koh rather sharply, calling this argument "cute" and suggesting it was an academic confection (there was something about him imagining Koh and colleagues "high-fiving" about it, which was a rather weird suggestion). Corker said he respected Koh's "intellect" but not his "judgment in this particular case."

Kerry then intervened, noting that the President did break new ground by expressly accepting the WPR's constitutionality, that the President did solicit a legislative authorization before the 60-day clock ran, and that Congress was to blame for failing to act (Kerry says he went to the leadership about this, and they weren't interested).

In response to questioning from Senator Webb:

Senator Webb asked whether there was internal debate in the administration regarding the WPR interpretation issue, but Koh declined to comment.

Webb asked about the fact that military members get combat pay as to Libya, and Koh pointed out that troops in all sorts of deployments abroad get the same payment in circumstances in which there is plainly no hostilities.  "Imminent-danger pay is given on a different basis than 'hostilities.'" 

Webb disputed the idea that indirect support for combat should be treated as meaningfully different from combat itself ("not everybody's a trigger puller").  It's an "artificial distinction."  Koh disagreed.

Webb asked about assassination of a head of state.  Koh noted that assassination is prohibited by executive order, but emphasized that this prohibits "unlawful acts" not just any killing (no doubt having in mind that as part of the military chain of command in Libya, Qaddafi may be a lawful military objective).

In response to questioning from Senator Lee

Lee opened by asking how Koh defines "hostilities" in the WPR.  Koh responded that Congress intended to leave the term subject to development by executive practice, and denied that Congress meant to make the term coextensive with "armed conflict."  Koh referred to the Monroe Leigh testimony on this issue during the Ford Administration, emphasizing Leigh's explanation that the term means "units of U.S. armed forces are actively engaged in exchanges of fire with units of hostile armed forces" and that it does not include situations where risk of harm or escalation is limited.  It's an "important document" in that it responded to an "acknowledge[ment]" by Congress that it did not have a clear view as to what "hostilities" meant at that time.

Lee asked if courts are likely ever to address the constitutionality of the WPR.  Koh expressed doubt - "highly unlikely" that this would be justiciable.

Lee also asked if there was a problem under the opening provision of the WPR in which Congress listed the scenarios in which it thought the President could properly use armed force (pursuant to a declaration or specific authorization from Congress, or in response to an attack).  Koh noted that there is a longstanding dispute about the meaning of that list and its impact.

In response to questioning from Senator Coons

There was an interesting discussion, but it ultimately raised no issues not noted above.

In response to questioning from Senator Risch

Risch quoted President Obama's statement to the Boston Globe, during the last presidential campaign, asserting a limited view as to whether the President can launch military attacks without legislative authorization.  Koh said that was too narrow a statement of executive power, and that it should have been framed as a limit on the president's power to engage in "war," as distinct from "military attacks."

In response to questioning from Senator Shaheen

Shaheen asked whether targeting Libya's chain-of-command is consistent with the UNSCR.  Koh said NATO does not target individuals, notwithstanding an inaccurate media report attributing such a view to a U.S. Admiral. 

[Note: The discussion continued, but I had to drop out at this point.  Up to this point, no one had asked about WPR 8(c) in relation to U.S. personnel commanding NATO forces....]