War Powers

Yet Another Iraq War Powers Letter, and a Response to Lederman

By Jack Goldsmith
Tuesday, September 9, 2014, 9:16 AM

Yesterday the President sent his seventh Iraq-related War Powers Resolution (WPR) letter since June, and the fourth in about a month.  The new letter concerns U.S. Armed Forces using “targeted airstrikes in the vicinity of the Haditha Dam in support of Iraqi forces in their efforts to retain control of and defend this critical infrastructure site from ISIL.”  This development further confirms my theory that the administration is issuing piecemeal letters in an effort to argue later that “hostilities” under the WPR are mission-specific and that the WPR clock expires when the discrete in-country mission expires.  “On this logic,” I explained last week, “if the President reports to Congress about discrete missions in Iraq, and if each discrete mission lasts less than 60 days, the President can use force in Iraq indefinitely without triggering Section 5(b).”

In connection with the latest WPR letter, Marty Lederman has a characteristically thoughtful and intelligent response to my post on this matter.  I urge interested readers to look at it.  A few responses:

Marty says that the “WPR reports in question describe discrete missions with very limited and targeted objectives.”  Yes, the letters describe the missions in that way, but I don’t buy the characterization.  Every mission is “targeted” – that is a requirement of the laws of war.  And I don’t think the missions possess “very . . . limited” objectives.   As of a week ago, the United States has conducted 120 air strikes in less than a month, killing many people in many places in Iraq, and it has conducted many more air strikes since then.  The United States is using this firepower to kill, degrade, and deter Islamic State fighters that have been described (outside of the WPR letters) by the President and other top officials as an enormous threat to the United States and its interests in the region and elsewhere, and part of a long campaign.  The President’s letter describes each discrete mission to serve these ends as “limited,” but the reality is that neither the fire nor the ends for which fire are used are “limited.”

I should note that Marty and I likely don’t have much of a disagreement on the law of the WPR if my characterization of events is right.  Marty simply assumes, as the President says in the WPR letters, that the various missions in Iraq are designed only to serve discrete and particular aims, and are not related to a broader effort to defeat the enemy.  I think this characterization is obviously inaccurate.  But perhaps a more fundamental point of disagreement between us is that I do not see why the highly manipulable characterization of airstrikes in a country as “limited and targeted” matters to the “spirit” of the WPR (which is the issue Marty is addressing).  The WPR is a dysfunctional statute, but one of its main aims was to ensure that the President ultimately had congressional approval before engaging in long-term “hostilities” in a nation.  I have explained (in the Libya context) why I think significant air fire of the type now deployed in Iraq counts as “hostilities” under the WPR.  In these situations, the WPR requires congressional authorization after 60 (or 90) days of hostilities.  That is what I meant when I said that the Obama “discrete mission” approach is contrary to the spirit of the WPR even though it is largely consistent with its language (which does not by its terms forbid a President from slicing and dicing missions in a country the way the administration is now doing.)

I also don’t see why it is relevant to the WPR that (as Marty says) “there is widespread support in Congress for these limited missions, and congressional leaders have given the President their blessing.”  Yes, Congress backs the President for now and doesn’t want the responsibility of a vote on the Iraq matter.  But the whole point of the WPR, for better or worse, was to force Congress to exercise its constitutional responsibilities by requiring a vote on the use of hostilities after 60 (or 90) days if the President wanted to continue to engaged in “hostilities” after that period.

Marty goes on to discuss in great detail, and with many precedents, the fact-dependent question of when hostilities are truly “intermittent” under the WPR.  I don’t have much to quarrel with in this analysis except to say that the air strikes in Iraq in the last month appear already to be more intense than any of the precedents Marty cites.  It is also very important to note that the 2011 Libya air strikes were described – not just in the WPR letter, but also in the OLC opinion – as “limited in their nature, duration, and scope.”  And yet there the administration followed the more usual practice of a single WPR letter with a regular update in the biannual consolidated WPR report.  But in Libya that approach led to the embarrassment of having to argue, after 60 days, that the extensive fire in Libya did not amount to “hostilities.”  And so in Iraq the administration appears to be adopting a different tactic to skirt the WPR’s clock.  If this is not the right interpretation, why did the “limited” action in Libya follow the usual practice, while the “limited” action in Iraq has generated a flurry of WPR letters?

A final note.  The Obama administration appears to believe, contrary to some prior administrations and perhaps more forcefully than others, that the WPR is constitutional.  And yet in Libya and now Iraq, the administration has, I think, done more through interpretation than any other administration to render the already-weak WPR a dead letter, especially in an era of war from a distance.