1973 War Powers Act: does Libya qualify?

Great Debates
61

CP, John’s pointing out that we are talking about what is going on now, past the 60 day mark, not in the past, has not clarified the issue for you? The WPA requirements are met if “hostilities”, as defined by the Act, are no longer in progress by the 60 day mark. If hostilities so defined are no longer extant, then no report is required.

This thread is about the War Powers Act and if it applies, you know.

You want to have a different debate however - were we right to support the Nato effort and correct to continue support it in the manners that we currently do (which meet many common sense definitions of being involved in hostilities, even while it does not the definitions contained in the WPA)?

Ignore the rhetoric about democratic values and only consider the cynical possible outcomes. France and Britain wanted to do it and were willing to shoulder most of the risk in terms of any long term commitment. The various Arab powers that we want influence with were asking us to do it as well. The US would do the initial taking out anti-aircraft capacity and provide support services. After the initial period there would be no US forces at risk. The UN authorized it.

Play out the future outcomes:

The US does not act in concert, even in this limited way and Gaddafi wins. No doubt massacring many thousands along the way. Boy, we have Gaddafi as a friend and have no cred with the EU or the Arab nations we want to influence. Not so good.

The US does not act in concert, even in this limited way and the rebels win. The new Libya is pissed at us and we have no cred with the UK France the EU or the Arab countries we want to influence.

The US does act and Gaddafi wins. Well Gaddafi’s pissed but he’s pissed at everybody and us no more than the UK and France. He’ll still sell oil and be no worse of an actor than he always had the potential to be.

The US does act and the rebels win. We are at least perceived as “being on the right side of history”. The best shot at having a Libya more securely friendly to us than before. No sure thing of course.

Again, ignore the democratic values and the threat of massacres for a moment - just RealPolitik - which is the choice more in our best interests?

62

I understand this. But what’s to say that the Marines won’t be on a similar mission in seven days? Using the logic here, then any President could avoid the WPA by saying, ‘Doesn’t mean we’ll do it tomorrow.’

Thank you for the clarification. I can’t read very well, so sometimes I miss things like thread titles and Doper posts.

uh no-

Well, members of Congress and the Justice Department clearly disagree with you.

63

To your first point - In this case the President stated from the outset that US involvement would be restricted in the manner that it has been - armed forces in airspace for less than a few weeks and then a supportive role only. He has stayed true to that course and terminated involvement in “hostilities”, as covered by the WPA, on that schedule. So what’s to say? No, who’s to say. The President did.

To the second - The debate is about whether or not those specific individuals, or the President, is right. I have quoted the WPA itself. You know, source material? It defines “hostilities” for the purposes of the Act very specifically. And again IANAL, let alone a constitutional one (although Obama is), but to my read it very clearly does not currently apply. (Even though I think that drone attacks, if those are ongoing, and I assume they are, should apply.)

If your contribution to the actual op is that some believe it does, or at least say they do, well, thank you for playing.

Why you missed the thread title and the op I can’t say.

64

I think **DSeid **already explained this, and yet you’re still going on about what happened in the past. Obama has made it clear that we are not now and will not in the future have our pilots flying the bombing raids.

As I pointed out earlier, though, the relevant action is the drone attacks. Those are still ongoing. They are killing people. That is “hostilities”.

65

My head hurts. If drones apply, then Obama needs Congress’s permission. My reading of the WPA focused on Section 8 (I’m sure you have it memorized by now) - and since Obama has also stated that ‘Ghadafi has got to go’, I can’t imagine he’d restrain from ground or air forces in the future. We’re also supporting other forces in overthrowing Ghadafi (NATO & the insurgents). He also stated we wouldn’t be there for very long, so what he states about the future of the conflict has little credibility.

66

But are they, as defined by the WPA?

67

Drones didn’t exist in '73, but missiles did. Do you think launching missiles into a nation for more than 60 days without congressional approval would have flown in '73?

68

The WPR does not define hostilities. It does not exclude support services (as we have been using that phrase here as “intelligence and support”) from hostilities.

You’re quoting Section 4(a)(2) which has nothing to do with hostilities. The President has to report to Congress when US armed forces are introduced in: three situations. (1) is into hostilities. Another, (2), is in any case where Armed Forces are present (not necessarily hostilities), if they are equipped for combat. However, he does not have to notify Congress about supplying, replacing, repairing, or training those same forces. For example, we have a base with armed combat troops in neutral foreign country X, President has to report this to Congress, but he doesn’t have to tell them every lil detail about that base indefinitely (supply, training, ect.). The President would have to notify Congress if he deployed a significantly larger amount of troops to the base (like a buildup). That’s Sec4(a)(3) and the third reporting requirement.

What we’re arguing, and again I still think we are subtly arguing different things, is different, but both relates to reporting requirement (1): Hostilities. What I’m arguing is basically whether the US is still engaged in hostilities it was clearly engaged in previously (which is why Obama reported it March 21 under the WPR). If the US pull out and goes home, it is not engaged in the hostilities (focusing on engagement, not the actual hostilities that will still be ongoing when we leave). I think meaningful logistic support and intelligence is engaged in hostilities, but that’s debatable. I certainly think US drones bombing targets is and don’t think that’s really debatable.

Having said that, the purpose of the WPR was to prevent another Vietnam (slowly, but surely sending in more and more troops, ect.). I don’t see that happening here.

69

I think the WPR was introduced for much broader reason than just to prevent another Vietnam. That’s way to high a bar to set.

70

should have said “Vietnam situation”; or starting a war, and Congress not being able to stop it. So right, not necessarily the body count situation, but what led to it happening and the legalisms Congress used that were unable to stop it.

The WPR pre-stops every war that’s started. Brilliant in a way.

71

I don’t see what you mean. The WPR doesn’t pre-stop any military action authorized by Congress (like those in Afghanistan and Iraq).

At any rate, if you personally are not worried because the action in Libya is unlikely to escalate, that’s fine. But the WPR stands on its own, and its own wording. I am very uneasy about ignoring the letter of this law, which was a rare instance of Congress trying to reclaim its Constitutional powers that had been whittled away over the years.

72

Right, it pre-stops every war, unless Congress authorizes it (but it’s still always pre-stopped unless Congress wants it to continue). Congress wanted those wars and authorized forces for them (unlike Libya). Other sections of WPR cover wars which Congress authorized, and how Congress can end those wars (repeal the authorization). The brilliance in the resolution I was referring to is that Congress can pre-stop a war by doing absolutely nothing (which they thrive at). Congress sat down in the early 70’s and said we know we suck, we know we’re weak, what do we do about it? Let’s help our future Congressmen out and pre-stop every war for them! If they really want the war, then they’ll have to actually authorize it, but if they don’t, they can sit on their asses and do nothing. They acknowledged their inherent weakness regarding war and came together and wrote the War Powers Resolution. Brilliant.

WPR stands on its own, and I think drones strikes and significant logistical and intelligence support is still being engaged in the hostilities. Congress has not authorized our use of forces in these hostilities, therefore it will become (is?) “illegal” according to the WPR.

73

I’ve read it in context and it sure seems to me that that section defines the circumstances under which the Act applies, beginning with reporting to Congress, and then if those conditions are not terminated, what is “required” (in its toothless manner).

Moreover that is what fits with your, I believe accurate, understanding of the intent of the Act. It was a response to what happened in Viet Nam and reflected a desire to prevent another Viet Nam type circumstance of more and more troops placed in harms way.

74

Correct. That section lays out three situations in which the President would have to report the introduction of armed forces (or as you say, when the Act applies).

WPR Sec5/1543

This thread should only be revolving around situation (1): hostilities (or imminent hostilities). Obama sent a letter March 21 consistent with WPR because he introduced our armed forces into hostilities. He is now claiming the clock has stopped before the 60days he had to get authorization had ended.

I’ve reread some of the thread and I misspoke on the first page, the President is claiming what you’re claiming, that there is no more “hostilities” (which is what stopped the 60days clock). I found that argument weird (for reasons I’ve already gone into in that it doesn’t make logical sense to frame it that way, because I don’t see how you can separate out different allied parties - especially NATO whom an American is leading), but that’s what he’s claiming. I’m thinking it’s a novel argument in a multiple party war. I could understand if it was just the US vs. Gadhafi and we’re debating whether our acts are hostilities. Clearly there are hostilities in Libya, it should be whether we are engaged in them or not (which might be more semantics than anything else). Also, he’s claiming we have not been engaged in hostilities since April 7 (I’ve also read April 5th, so sometime around early April). Drone strikes, in his mind, does not count towards hostilities, or does not rise to the level of hostilities.

To help define hostilities, is this interesting note: in the WPR legislative history, the word “armed conflict” was initially used instead of “hostilities.” An armed conflict is a more restricted view of what constitutes war than hostilities, which is broader. To be sure, an armed conflict itself is an extremely broad view of war; for instance, the President considers the War against Al Qaeda to be an armed conflict - that’s a broad view. We are using drones strikes to attack AQ in Yemen for instance, this is possible because we are in an armed conflict against them. With that in mind, I don’t think anyone (except contradictorily Obama) would not consider a drone strike against a foreign country without consent to not be an act of war and not be an “armed conflict.” Since hostilities encompasses more acts than an armed conflict, a drone strike must also be considered hostilities.

75

Missed the edit, but let me be extra clear. The 60 day clock does not apply to situations (2) or (3). The 60 day clock only applies when armed forces are introduced into hostilities/imminent hostilities. [situations 2 and 3 are merely reporting requirements, but they don’t trigger any clock on when they have to be removed].

So when you were using language from situation (2) previously in this post to justify/define hostilities is incorrect and was confusing; although I can understand why. Hopefully this explains why clearly enough.

76

Link.

“Honestly, I think we should just trust our president in every decision that he makes and we should just support that, you know, and be faithful in what happens.”
– Britney Spears

I wonder what would happen if Mexico started to gun down DEA agents and/or weddings using drones. Under the logic of the Obama admin it wouldn’t be a hostile act to nuke Libya, either. No boots on ground (does anyone believe we don’t have special forces there btw?), no chance of retaliation.

Not that it matters. The WPA is completely worthless and Obama will be fine. But you know, theoretically.

77

As far as what the plans are, and holding someone to the plans, yes, what the President says matters. And if the President does not stick to those plans then he needs to be accountable.

In this case your link provides the critical information. Manned missions have occurred since the hand off, as recently as last Saturday. That crosses over any reasonable interpretation of the WPA criteria for ongoing hostilities and is evidence that he did not stick to the plan as advertised. (And again, what I’d think of as “hostilities” is immaterial to what the law states they are.)

So now we are just left with the fact that the WPA is ignorable.

78

From the OP [President Letter to Congress written near clock deadline]:

The NY Times is not reporting anything that the President hasn’t already said he’d be doing (since he claimed the clock stopped in early April). The only thing the President doesn’t say is the frequency of (2) and (3). If he’s said something publicly that contradicts what he told Congress, then yea, I guess he’s lying.

So while he’s not lying, it’s just laughable that he doesn’t consider those types of acts hostilities.

The WPR is ignorable, but you don’t need to waste your time with hostilities. The Office of Legal Counsel has already stated the President has the constitutional right to do what he’s doing (which is a much better debate). A statute can’t stop a constitutional right.

79

Senators Kerry and McCain have introduced a resolution to authorize limited use of U.S. military force in Libya. It “could be voted on as early as this week.”

80

I can’t imagine it would be voted on this week. The quote is the journalist’s opinion, doesn’t say why she thinks that. Pretty optimistic timeline, considering all the disagreements concerning Libya and the WPR. The resolution would have to stay in its present form and I just think too many Senators would want to add/detract/change a word/ect and talk, and talk, and talk.