The legal debate over U.S. military involvement in Libya continues, with some members of Congress seeking to force explicit approval under the War Powers Resolution and others likely to force a vote to deny funds for future military efforts.
On June 22, Brookings expert Robert Chesney took your questions, in a live web chat moderated by POLITICO, on the War Powers Resolution and how it applies to the situation in Libya. The transcript of this chat follows.
12:31 David Mark: Welcome to the chat. Let’s get started.
12:31 [Comment From John: ] Explain the “clock” that runs under the war powers resolution. What does it require, and where are we in the process?
12:33 Robert Chesney: The War Powers Resolution (“WPR”) specifies that when U.S. armed forces are in “hostilities” are in circumstances where hostilities are imminent, the president must submit a report to Congress, and this in turn starts a 60-day clock. The idea is that Congress must affirmatively authorize the operation within that window, or else it must extend the window (and the president has an option of taking another 30 days to withdraw). We are well past the 60 day point (I believe we’re at day 93, roughly).
12:33 [Comment From Mark from Greenbelt: ] What is the Obama administration’s argument that Libya does not fall under the act? What’s the counter argument?
12:37 Robert Chesney: The argument is that the word “hostilities” in the WPR has a particular, and relatively narrow, meaning in this setting (i.e., “hostilities” is a term of art requiring reference, just in this setting, to a particular definition). The WPR does not actually define the word, of course. The administration’s view appears to be that not just any circumstances of U.S. involvement in fighting will count. Rather, “hostilities” occur for WPR purposes only where something akin to a full-scale armed conflict with sustained, relatively high-intensity kinetic operations by U.S. forces occur. In the present circumstance, we have only limited direct involvement in kinetic operations (periodic drone strikes, and apparently periodic manned aircraft strikes), while the rest of our involvement is in the nature of (important) support for the kinetic operations of our NATO allies.
12:38 [Comment From Cynthia: ] We’re conducting airstrikes and dropping bombs in Libya. How can that be interpreted as anything other than military hostilities?
12:41 Robert Chesney: This goes to the heart of the problem for the administration’s analysis. From a lay perspective, it just seems silly to say that we’re not engaged in hostilities. But, to be clear, the administration’s argument (discussed above) is not coming out of nowhere. The meaning of “hostilities” has come up over time in contexts where U.S. forces were deployed abroad (e.g., peacekeeping operations) and were at risk of or actually were being attacked. In that setting, past administrations have argued that there must be a threshold of intensity and frequency crossed before you have WPR hostilities. The question today is whether that logic, which makes a lot of sense when we are not on the offensive but rather are being attacked on a small scale, should extend to something like Operation Unified Protector (the current label for our Libya operation).
12:41 [Comment From Chico: ] Suppose Congress does force a vote to deny funds for future military efforts – what does that mean in a literal sense?
12:43 Robert Chesney: This probably won’t happen, as the Senate leadership appears to support the operation. But let’s say it does. That can and should end the operation. If nothing else, most everyone in these legal debates agrees that Congress in the exercise of its constitutional authority over the budget can stop military action by cutting off funding for it. There probably are fact patterns we can think of where it’s not quite that simple, as where there is a need for some continued spending simply to safely extricate troops…but that’s not at all the case here.
12:43 [Comment From Michelle W.: ] Are Department of Justice lawyers in disagreement with White House lawyers? And is that unusual?
12:47 Robert Chesney: One of the strangest aspects of the unfolding story has to do with the process by which the administration apparently came to its current position on the WPR issue. The media reported this weekend that lawyers at the Defense Department and the Justice Department’s Office of Legal Counsel (“OLC”) concluded that Operation Unified Protector constitutes “hostilities” under the WPR. In contrast, lawyers at the State Department and the White House Counsel’s Office concluded otherwise, and the president took their view. This generated lots of criticism, on the theory that OLC’s views ordinarily should be conclusive (and on the theory that the usual process in which OLC marshal’s the views of the other agencies may not have been complied with here). But to be clear, the president is in no sense legally bound by OLC’s views, nor obliged to follow the usual OLC process (though there are many strong reasons why president should follow that process). It rarely happens, but isn’t wrong per se.
12:48 [Comment From Giambo: ] So the Congress can’t stop the war in Libya?
12:49 Robert Chesney: They can stop it today if they want to cut off funding. There are proposals in the House at least to do so. Of course, it’s not that easy. Let’s say Congress puts a funding cut-off in the currently pending National Defense Authorization Act. The president could veto the bill, and Congress probably could not muster 2/3 of both houses to override the veto. But it’s not clear that the president would veto such a bill.
12:49 [Comment From Shawn: ] What about the involvement of NATO? Does it change the argument if an international coalition is taking action, and the U.S. is just a part of the coalition?
12:53 Robert Chesney: This is a really important point. Some have suggested that this is no longer a matter of “U.S.” armed forces involved in hostilities, but rather NATO armed forces. That argument is unpersuasive. Note that Admiral Stavridis (U.S. Navy) is the military commander of NATO forces, and section 8(c) of the WPR actually anticipates this situation to some degree in that it refers explicitly to the situation in which U.S. personnel are in command of or attached as advisers to foreign forces engaged in hostilities. To be sure, this language was drafted in light of the Vietnam/Cambodia/Laos experience, with an eye toward military advisers rather than the NATO structure. But the language of the statute nonetheless is plenty broad enough to encompass the NATO scenario.
12:53 [Comment From Danielle: ] What’s the difference between what the Constitution says about declaring war and the statute?
12:57 Robert Chesney: It is fascinating how little attention the underlying constitutional question gets in comparison to the WPR question! Maybe this is because the constitutional question came up at the outset before concerns about the Libya operation became more sensitive, or maybe it’s because the WPR clock is such a dramatic and accessible cue for paying attention. Either way, surely the constitutional question is at least as important. So, here is the deal in a nutshell: Scholars disagree sharply about the extent to which the president may use armed force without Congressional authorization. Most everyone agrees he can at least do so as a matter of national defense, but if instead it is a matter of foreign policy, there is much dispute. The administration in this case argues that the Congressional prerogative to decide to go to war attaches only when the situation is sufficiently sustained and intense to amount to “war” in the constitutional sense. It is, in many ways, similar to the WPR argument, though not exactly the same.
12:58 David Mark: Thanks for the chat, folks.