The Hostilities Loophole

Now this is interesting. Further to my post from late last night concerning the showdown on the War Powers Resolution, it appears that the White House is calling the Speaker’s bluff,  but in a very unusual way. It sounds as though at least one set of punches is going to get thrown in court, with a U.S. District Court Judge likely to soon be asked to literally stop a war.

In a message transmitted to Congress, the White House has offered this legal analysis of the War Powers Resolution and the ongoing military adventure in Libya (go to page 27 of the linked document):

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.

That’s it. No citations to statutes, no citations to case law, no quotes, no relation of fact to law at all. I thought the President was a Constitutional scholar before he entered high politics. Well, this wasn’t written by him personally, and I’m guessing he doesn’t have time for scholarship anymore anyway. It shows.

Since the White House isn’t interested in doing the legal work in question, or at least in showing that they’ve done it, I’ll pull the applicable parts of the statute for you. Following are the relevant parts of the statute:

50 U.S.C. § 1543(a). Written report; time of submission; circumstances necessitating submission; information reported. 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, setting forth—

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introduction took place; and

(C) the estimated scope and duration of the hostilities or involvement. …

50 U.S.C. § 1544.  (a) Transmittal of report and referral to Congressional committees; joint request for convening Congress. Each report submitted pursuant to section 1543(a)(1) of this title shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section.

(b) Termination of use of United States Armed Forces; exceptions; extension period. 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.

(c) Concurrent resolution for removal by President of United States Armed Forces. Notwithstanding subsection (b) of this section, at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

That’s all that even potentially matters for purposes of figuring out whether the President’s claim is right or not. So, do you see it? Do you see the needle they’re trying to thread? I think I do.

Under 50 U.S.C. § 1544(b), the President is only required to solicit Congress’ approval for the kind of conflict described by 50 U.S.C.  § 1543(a)(1). If Libya is a 50 U.S.C. § 1543(a)(2) or a 50 U.S.C. § 1543(a)(3) conflict, Congress hasn’t instructed the President to do or not do anything at all other than make a report within 48 hours after military activity has been initiated. If the conflict in Libya is the entry of United States armed forces “…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” but not “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” the President completely discharges his duties under the War Powers Resolution by making his 48 hour report (which he did in this case) and then acting thereafter at his sole and independent discretion.

I only see one problem. It’s difficult to say that shooting missiles at, and destroying, military and industrial assets of the Libyan Loyalist government relates solely to supply, replacement, repair, or training of the Libyan Rebel forces. It’s much more honest to say that our forces are engaged in providing aerial support and cover for the Libyan Rebel forces — we are, to a very meaningful extent, acting like the Benghazi government’s surrogate air force and actively striking at Libyan targets. That sounds like “hostilities” under pretty much any reasonable interpretation of that phrase.

The fact that we are engaged in a manner that leaves our pilots at risk pretty much only of mechanical failures rather than enemy fire means to me only that we’re on the good end of a very unfair fight, and damn it, we’ve paid a lot of money to make sure that the U.S. flies the planes that no one can shoot down and our medium-term tactical doctrines are such that we remove threats to aerial support first and thereafter fly and strike with impunity. The fact that this is a good way to go about making war, and we’re good at doing it, does not make it any less “warfare,” or to use the phrase found in 50 U.S.C. § 1543(a)(1), these are “hostilities” despite the one-sided nature of those “hostilities.”

I think I see what the White House lawyers are going for here, but I can’t see how they’re going to make it to that destination.

Once again, of course, there is nothing to stop Congress from acting on its own; the House and Senate have been conferring on language to authorize miltiary activity in Libya and there doesn’t seem to be much public outrage that we’re doing what we’re doing there. The constitutional conflict could be neatly solved if Congress would unilaterally declare war on the Libyan Loyalist government and tell the President to execute that war in any way he saw fit.

Instead, though, Congressmen Dennis Kucinich, Walter Jones, and eight of their colleagues are going to file a lawsuit against the President tomorrow. Because litigation is a lot more fun than cooperating to resolve legal problems and act in the public interest. While we’re at war. As to the lawsuit, I smell judicial punts coming under the guise of “political question” and “lack of standing.”