As long as we are covering the waterfront when it comes to the legal questions raised by the prospect of using force in Syria, we should say something about the role of the War Powers Resolution. After all, a group of 97 GOP House members, joined by 18 Democrats, yesterday sent a letter to President Obama insisting that he has a “responsibility” under both the Constitution and the WPR “to consult and receive authorization from Congress before ordering the use of U.S. military force in Syria.” So, is that right as to the WPR? Let’s set aside the argument that the WPR is itself unconstitutional in whole or in part, and concentrate on how the statute might apply to the fact pattern we have here.
1. The Consultation Requirement under Section 3
Section 3 of the WPR does require that “in every possible instance” the President must
“consult with Congress before introducing United States Armed Forces into hostilities or into a situation where imminent involvement in hostilities is clearly indicated by the circumstances.”
So, any problems here? Probably not. The WPR does not define what counts as sufficient “consultation,” which pretty much ensures that arguments on that score are unlikely to go anywhere. At any rate, we are told the White House “is set to provide a briefing for bipartisan members of the Congressional leadership as well as the top ranking members of the national security committees on Thursday.” The White House surely will take the position that this is adequate to discharge any WPR consultation requirement that may apply here. Others will argue this not enough, but neither the WPR’s text nor past practice gives much basis for insisting upon broader outreach or a more different kind of outreach.
Of course, this only matters if you have “armed forces” introduced into existing or imminent “hostilities.” And that brings us to a second issue, one that received a lot of attention in connection with the war in Libya a few years ago (see here for a collection of Lawfare posts exploring that debate in 2011). Harold Koh famously (or infamously, depending on who you ask) argued to Congress in the summer of 2011 that U.S. involvement in Libya did not amount to involvement in hostilities, as a matter of statutory interpretation, because (i) “hostilities” is an ambiguous term the meaning of which is determined in significant part by past practice under the WPR, (ii) the meaning must be determined with reference to the specific facts of a given situation, and (iii) in the Libya example of host of limiting considerations—including the limited scope of the mission, the limited exposure of US forces to attack, the limited risk of escalation, and the limited array of combat capabilities involved—combined to keep the U.S. role under the threshold of hostilities. I assume that the administration will embrace the same position here, and if the eventual strike on Syria amounts to a barrage or two of cruise missiles and nothing more, it will seem to fit within that mold. Of course, that mold was soundly criticized at the time, and no doubt will be again.... [Note: A colleague wrote in, after reading this post, to raise the possibility that Koh might have given a different answer at an earlier stage of the operation in Libya when manned US aircraft were involved in airstrikes; re-reading Koh's testimony with that in mind, I can't foreclose the possibility, but it's not clear to me either way frankly]
2. The Notification Requirement under Section 4
Section 4 of the WPR gives the President 48 hours to provide a written report to key Congressional leaders if US forces are put into certain triggering situations, including (i) deployment into actual or imminent hostilities, or (ii) regardless of the imminence of hostilities, the forces are deployed into foreign territory, airspace, or waters while equipped for combat (excluding supply/repair/training missions).
Would either be triggered by an attack? I covered the “hostilities” argument above, so let’s focus on the combat-equipped deployment test. If we are talking about manned aircraft entering Syrian airspace, or anyone else’s airspace, in order to bomb, this one looks satisfied. If instead we are talking only about sea-launched cruise missiles (SLCMs)—i.e., nothing in foreign territory but weaponry, as opposed to human beings—it’s a bit trickier. Perhaps one could argue that the missile itself is not “United States Armed Forces.”
But at any rate, this is all academic. It is inconceivable that the administration would launch an SLCM barrage or manned airstrikes without soon providing Congress with a formal notification of that fact, no doubt accompanied by language that the notification is provided “consistent with” the WPR.
So what really is at stake with the Notification Requirement of Section 4? Read on.
3. The 60/90 day Withdrawal Clock under Section 5
The notification requirement sometimes matters a lot simply because it is the starting gun for the 60/90 day “clock” under WPR Section 5. But it won’t likely matter at all in this instance, for two reasons.
First, section 5 provides that the President must withdraw forces 60 days after the written notification under Section 4 (or after an additional 30 days if the President certifies in writing that safety requires the additional time to complete the withdrawal), unless Congress in the interim expressly authorizes the deployment. Or, rather, it says all this has to happen if the notification under Section 4 had to be filed due to satisfaction of the “hostilities” test; the clock does not start when the notification instead is triggered by the combat-ready deployment test. And so, once again, the definition of “hostilities” is the key. If one accepts the likely administration position that one-off airstrikes don’t count as WPR “hostilities,” the withdrawal clock never starts running.
The second reason that the withdrawal clock won’t matter is much simpler: if the attack involves a 24 or 48 hour period of airstrikes, and nothing more, the intervention will be over long before the clock can run. Only if we become entangled will this begin to matter, at which point the weight will fall on the credibility of claiming that we are not deployed into “hostilities.”