Targeted Killing: Drones

The WPR, the Clock, and "Deferring to NATO": What Did Senator Kerry Mean?

By Robert Chesney
Thursday, May 12, 2011, 9:50 AM

Josh Rogin reports a cryptic comment from Senators Kerry and McCain with respect to the looming expiration of the WPR's 60-day clock. Here is Kerry:

"I'm not hearing from my colleagues that they feel the War Powers situation is currently in play because we're deferring to NATO," committee chairman Sen. John Kerry (D-MA) told The Cable.

I'm not at all surprised that there is little agitation in Congress for actually complaining about the expiration of the WPR's clock.  I am very interested in that last part of Senator Kerry's statement, however, regarding deference to NATO as a reason not to worry about the WPR clock.

This could mean at least two things.  First, it could be read to mean that Congress accepts the argument that U.S. forces are employed only in a supporting context in Libya and hence that they already have been withdrawn from hostilities for WPR purposes, mooting the clock issue.  At first blush that seems at odds our introduction of armed UAVs in recent weeks, but then again it may be that we just aren't carrying out attacks at this stage and instead are using the drones merely for ISR purposes (as suggested in this recent Post article).  That would make sense (though of course one could have an interesting argument as to whether putting US military assets into the air in a combat zone for ISR purposes, in direct support of combat missions conducted by others, should constitute the involvement of "US armed forces" in hostilities).

On the other hand, Kerry might be suggesting that the mere fact that our involvement now takes places under the NATO rubric somehow negates the entire WPR inquiry.  I hope that is not what he meant, for I don't think it is a persuasive argument.  Let's assume for the sake of argument that we have a circumstance in which the WPR indisputably applies by its own terms; if U.S. forces in such a case then began to operate under a NATO command structure (or any other internationalized command structure, such as the old Multi-National Force-Iraq), I have a hard time seeing how this alone would categorically negate the WPR issue (let alone the underlying constitutional separation of powers issue).