Sunday, June 19, 2011

War Powers Act

There has been some discussion lately about the War Powers Act, and what exactly the President is allowed to do without approval from Congress.  As a constitutional law scholar* I thought I'd summarize the situation.
*Note: By "constitutional law scholar" I mean "guy with access to Wikipedia".

Article 1 Section 8 of the Constitution lists all the things Congress has the power to (legally) do.  It includes the following:
"The Congress shall have Power...
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"

Article 2 Section 2 of the Constitution declares the President the commander in chief of the military:
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;"

A logical reading of these two clauses would suggest that Congress has the power to decide to go to war, and once that decision is made the President would provide the ultimate authority for how the military conducts that war.  It is no secret that we have not declared war since 1941; all wars after WWII were fought without declarations of war.  The Constitution doesn't specifically require a declaration of war, even though it's clear it intended for there to be a declaration of war before a war was fought.  Instead of declarations of war, Congress has given authorizations for war. Since there is no special requirements needed to pass a declaration of war vs an authorization (ie they are both normal laws), in practice this has little weight. While I'd like to see a return to formal declarations of war, it is pretty much a semantic change which reflects the general softening of terms with time.

The current law that deals with war is the War Powers Act of 1973. This law basically says that the President may use the military without congressional approval for between 60-90 days when needed. The law is actually pretty short and easy to read, so I recommend reading it yourself:

Here is some of it:
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;
the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress
(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States.
Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
The law goes on to state that no law or treaty may authorize war unless it explicitly says so. It also says that the President has no authority to fight wars outside of those granted in this law.

So that is the background info. The current situation is that the US has deployed to Libya with only the president's approval. The conflict began on March 19th, and the required report was submitted to Congress on March 21st. 60 days after the report was May 20th, 90 days was June 19th. Since the deadline was coming up and Congress wasn't going to approve the war, the White House had to come up with different justification. On June 15th the White House released a 32 page report that said the War Powers Act didn't apply.
White House: US 'can act in Libya without Congress'

While the report is 32 pages, the part that deals with the White House's justification for ignoring the War Powers Act is only a paragraph:
Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actions, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad. The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution’s 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.
At this point it is a good idea to reread the first quoted section of the War Powers Act above, and attempt reconcile it with the White House's claim. An important issue is if drones count as US Forces. I'd probably have to say no to that. In that case clauses (2) and (3) don't apply. Unless US fighters are flying in Libya airspace. In that case (2) seems to apply pretty plainly. Only one clause needs to apply in order for the law to apply (note the use of or between clauses). So let's look at (1) again:
"in any case in which United States Armed Forces are introduced into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;"

So it comes down to if remotely fighting a war counts as being introduced into hostilities. If it said engaged instead of introduced I'd have to say yes. As it stands, introduced does sound to me as if it could only apply to situations where there is a threat to US Forces.

That's a technical reading of the situation. The reality is that it's clear that this action goes against the spirit, if not the letter, of the law. In addition it is clear that even those in a position to likely agree don't necessarily do.
2 Top Lawyers Lost to Obama in Libya War Policy Debate

The rational answer to this would be for Congress to simply pass another law clarifying what exactly constitutes hostilities. Unfortunately, we live in the real world. In the real world people align themselves with teams, and the people on the same team as the President won't do anything that is perceived as going against him. Those on the opposite team will do anything to interfere with him. The Senate has a majority on his team, and no surprise, support the war. The House has a majority on the opposite team, and you guessed it, are against it. So the reality is that no clarification will be passed. A lawsuit has been filed, but there is a legal concept called the "political question doctrine" which states that courts won't rule on issues it deems political. Prior challenges to wars have been dismissed for this reason. At most, the House may not fund it. However, I don't know how that would work, if there is already funding for the rest of the FY or what.

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