White House Clarifies Position on Libya and the WPR: US Forces Not Engaged in “Hostilities”

LawFare
by Robert Chesney

Charlie Savage at the NY Times has just reported that the White House is today providing Congress with information on ongoing operations in Libya, including an explanation of the Administration’s position as to why the continuation of the operation beyond 60 days does not violate the War Powers Resolution. The core of the argument, as I understand it, is that current operations do not constitute “hostilities” within the particular meaning of that term as used in the WPR. Does that make sense? It at least has a strong foundation in the past practice of the executive branch under the WPR. Here is some of the relevant background:

The argument begins with the point that the 60-day clock is triggered by the circumstances identified in WPR section 4(a)(1): i.e., U.S. armed forces either are introduced into “hostilities” or into circumstances where “hostilities are imminent.” That being so, the clock ceases to apply when those predicate conditions cease to be satisfied (i.e., US armed forces no longer are in hostlities or in circumstances where hostlities are imminent. Obviously, then, much hinges on the best interpretation of the WPR’s use of the word “hostilities.”

Since the mid-70s, the executive branch on several occasions has weighed in on this issue, taking a fairly consistent view. Here are the highlights as I understand them (if readers feel I’ve misread these or left out something important, I’ll be glad to update):

1975 – The Ford Administration, in the person of the State Department’s Legal Advisor and the Defense Department General Counsel, wrote to Congress that “hostilities” refers to a situation in which U.S. forces are “actively engaged in exchanges of fire with opposing units.”

1980 – The Carter Administration’s Office of Legal Counsel adopts that same definition, and adds that exchanges of fire must be more than merely intermittent or sporadic. The idea is “full military engagement,” not deployments in which U.S. forces from time to time come under limited fire.

1983 – The Reagan Administration declines to treat the WPR as applicable to the deployment of Marines to Lebanon, even after the barracks bombing. A Senate Report insisted that at least after the bombing, the hostilities condition was satisfied, but the Reagan Administration responded that such violence was too episodic to count for WPR purposes.

1993 – The Clinton Administration, with troops on the ground in Somalia from time to time conducting strike operations, writes to Congress to assert that “intermittent military engagements,” in contrast to “sustained hostilities,” did not suffice to keep the clock running (though a report was filed after an initial strike). Some legislators object, but in any event the Clinton Administration did not withdraw after 60 days.

1995 – The Clinton Administration files separate WPR reports after specific strikes in Bosnia, but does not treat each strike as starting the clock. The underlying theory presumably was that the strikes were too intermittent to generate a sustained state of WPR hostilities.

From that perspective, it’s not hard to see how the Administration comes to the view that the current state of US involvement in Libya–i.e., no boots on the ground, no manned aircraft flying combat missions and thus putting pilots in harm’s way as a theoretical matter, UAVs conducting combat missions only sporadically and with seemingly low intensity (isolated strikes on specific vehicles, that sort of thing), and manned aircraft otherwise conducting only support missions like refeuling and jamming–taken as a whole fails to come within the scope of the WPR’s requirements.

That’s not to say it’s an unassailable argument. For one thing, some no doubt would not give as much weight to executive branch interpretations as would, well, the executive branch. And there is the complication of Admiral Stavridis, an American officer, in command of NATO forces from other countries that are engaged on a much more sustained basis in “exchanges of fire.” But as Rick Pildes says in Charlie’s story, it’s not likely in any event that courts are going to weigh in on the matter (As Jack points out below, the Kucinich suit is a non-starter). The question instead will remain largely in the political sphere, with today’s arguments by the executive branch at least benefitting from continuity with the interpretations offered by past administrations of both parties.