Executive Power

The Uganda Intervention and the WPR 60-Day Clock

By Jack Goldsmith
Wednesday, December 14, 2011, 5:20 PM

On October 14, President Obama notified Congress that he had sent “a small number of combat-equipped U.S. forces to deploy to central Africa to provide assistance to regional forces that are working toward the removal of Joseph Kony from the battlefield.”  Not much has been written about this intervention in the last few months.  On Monday, Walter Pincus noted:

According to the Ugandan press, dozens of the U.S. Special Forces troops have established a frontline base in Obo, a town in southeastern Central African Republic, to help the regional armies track down [Joseph] Kony and other [Lord’s Resistance Army] leaders. The forward-based personnel are there to help with intelligence, communications and logistics operations. They are to fight only in self-defense.

Pincus quotes William M. Bellamy, director of the National Defense University’s Africa Center, and a former U.S. ambassador in Kenya, who described the U.S. action as an “armed humanitarian mission” of 100 Special Forces, and added that there are “no good precedents” for what the USG is doing.  To which Pincus added: “Would this be the precedent for military deployments in the post-Iraq, post-Afghanistan world?”

Pincus and Bellamy are probably thinking of political precedents, but they got me thinking about legal ones.  By my calculation, the 60-Day Clock under the War Powers Resolution, if it applies, has either already run or will very soon.  I doubt the Obama administration is about to pull out of Uganda, so it must have concluded – probably at the outset of the intervention – that the intervention was not one in which the troops were introduced “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances” under Section 4(a)(1) of the WPR, and thus that no termination trigger under Section 5(a) is implicated here.  I base this conclusion on the October 25 testimony of Alexander Vershbow, the Assistant Secretary of Defense for International Security Affairs, who stated that the administration “made the notification … based on one simple fact: that the nature of the weapons that our forces are carrying for self- defense are considered -- make those forces considered to be equipped for combat, a phrase that is in the War Powers Resolution itself.”  This is a clear indication that the notification was made under WPR § 4(a)(2), not § 4(a)(1).  And that would mean that the administration thinks it has no duty to terminate the use of U.S. armed forces in Uganda, since the termination duty of Section 5(a) only attaches to Section 4(a)(1) notifications.

This is a plausible reading of the WPR that highlights some of the WPR’s many ambiguities.    It is unclear from the publicly known facts whether the U.S. troops at a frontline base in Uganda are in a “situation[] where imminent involvement in hostilities is clearly indicated” within the meaning of WPR § 4(a)(1).  But in any event the president has exercised the discretion the WPR gives him to report pursuant to § 4(a)(2), which concerns the introduction of U.S. forces “equipped for combat,” and which does not trigger any termination duty after 60 days.  In addition to the soundness of this legal position, Congress will raise no hackles about the Uganda intervention, for section 1206 of the Defense Authorization Bill states that “the Secretary of Defense may, with the concurrence of Secretary of State, provide logistic support, supplies, and services for foreign forces participating in operations to mitigate and eliminate the threat posed by the Lord’s Resistance Army,” and authorizes $35 million for the effort.  (The bill also states: “No United States Armed Forces personnel, United States civilian employees, or United States civilian contractor personnel may participate in combat operations in connection with the provision of support” in the Bill, but of course placing U.S. troops at a front-line base enhances the likelihood of a self-defense action.)

So this is a situation in which the political branches seem in agreement.  Nonetheless, this episode can be used by a future president as a precedent for the proposition that a ground intervention of 100 armed U.S. forces in a military support role at a front-line base designed to remove rebel leaders from power does not trigger a Section 4(a)(1) reporting duty, and thus does not trigger the sixty-day clock.  This is not nearly as remarkable as the Libya intervention’s WPR-narrowing, attack-from-a-distance precedent, but it is a small narrowing-in-practice of the WPR nonetheless.