1973 War Powers Act: does Libya qualify?

[CoolHandCox]

Found this interesting…in a ‘huh’ sort of way.

The House is putting up it’s resolution to end the war in Libya. It’s short, I’ll post it in full. House Vote to “End” Libya War [there’s another House resolution to authorize it]:

CONCURRENT RESOLUTION

Directing the President, pursuant to section 5(c) of the War Powers Resolution, to remove United States Armed Forces from Libya.

Resolved by the House of Representatives (the Senate concurring),

SECTION 1. REMOVAL OF UNITED STATES ARMED FORCES FROM LIBYA.

Pursuant to section 5(c) of the War Powers Resolution (50 U.S.C. 1544(c)), the Congress hereby **directs the President to remove United States Armed Forces from hostilities** with respect to Libya by not later than the date that is 15 days after the date of the adoption of this concurrent resolution, except for those only engaged in—

(1) search and rescue;
(2) intelligence, surveillance, and reconnaissance;
(3) aerial refueling; and
(4) operational planning.

(bolding mine). In light of this entire thread and what started it, don’t you think you’d draft a resolution without the phrase “from hostilities.” Just put remove armed forces from Libya. The WPR itself already requires removal (over 30 days ago no less); that’s the whole point of it. This is just repeating the same thing, and we already know what Obama does and does not consider hostilities. Obama will just continue doing what he’s doing because nothing he’s doing is hostilities.

Or, if this is some sort of attempt to define hostilities, it’s poorly written; if it’s an attempt to force a court to define hostilities, a court would never do that (would they?). I’m trying to find the angle and can’t. Any ideas?

I must conclude it’s pure politics. And we didn’t need this post to come to that conclusion.

[TriPolar]

Interesting thread.

IMHO, no president will ever admit recognition of the WPA, but will politely play along with the Congress. Short of impeachment power, the congress has no way to enforce the WPA. So I generally consider it a non-issue. I have no problem with our actions in Libya, except that they’ve been insufficient so far. Collateral damage is our enemy here. If we can kill the unspellable madman, without being held responsible for any great tragedy, this may be the best war (or non-war) that the US has waged.

Also, IMHO, the American people don’t care about the WPA, and don’t trust congress to make these decisions. I’m not sure why we act as if we trust the CIC based on the past 6 decades of decisions, but it seems to me that we the people certainly prefer the CIC to make the decisions.

[CoolHandCox]

The House fixed the bill they had proposed the other day. Multiple changes, but importantly it now clearly does not allow any air strikes, whether from drones or piloted planes (unless the CIA operates the drones which they do in Yemen and elsewhere, but that’s a whole other problem).

Here’s the relevant section from HR 2278:

(a) LIMITATION.—None of the funds appropriated or otherwise available to the Department of Defense may be obligated or expended for United States Armed Forces in support of North Atlantic Treaty Organization Operation Unified Protector with respect to Libya, unless otherwise specifically authorized by law.

(b) EXCEPTIONS.—The limitation on funds under subsection (a) does not apply with respect to—
(1) search and rescue;
(2) intelligence, surveillance, and reconnaissance;
(3) aerial refueling; and
(4) operational planning.

@TriPolar

Interesting thread.

IMHO, no president will ever admit recognition of the WPA, but will politely play along with the Congress. Short of impeachment power, the congress has no way to enforce the WPA…

They actually have another way. Impeachment and de-funding. They are both realistically tough to do. The bill quoted above, does attempt to de-fund the Libyan war, though. That will add some muscle to it (and make it harder to pass) than the previous concurrent resolution version.

[Farmer_Jane]

Bastards.

The House of Representatives refused to authorize U.S. involvement in the NATO mission in Libya on Friday but also rejected an effort to cut off partial support for mission, sending contradictory messages in a pair of votes that demonstrated the deep divisions in both parties over the use of American forces in the conflict.

Despite growing frustration in Congress over the White House’s handling of the Libya mission, the failure of the back-to-back votes in the House will preserve the status quo for now, allowing the U.S. military to continue operations in Libya.

[Magiver]

@Ludovic

Not all military actions are exactly the same. Do you think that all military actions are exactly the same? Do you think that the Iraq invasion and occupation was handled better or worse than the Libya involvement?

There’s a simple logic test for it, if Libya,Iran, and Syria launch a “kinetic energy” diplomatic initiative toward the United States, are we at war?

[VarlosZ]

@DSeid

[The WPA] defines hostilities as putting armed military forces (persons) in the space of the conflict and requires a report by 60 days if hostilities as so defined (“in any case in which United States Armed Forces are introduced … 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”)

Where are you getting that from? Specifically, where are you seeing that “persons” represent a necessary component of “armed forces” under this provision? Unless I’m missing someplace in the bill where that is explicitly stated, it seems like the kind of inference that can be read into the language, but only if you really want to find it there in the first place. Both the colloquial and literal definitions of “armed forces” would include missiles and armed drones – do you have any evidence that the statutory definition does not?

[TriPolar]

@CoolHandCox

They actually have another way. Impeachment and de-funding. They are both realistically tough to do. The bill quoted above, does attempt to de-fund the Libyan war, though. That will add some muscle to it (and make it harder to pass) than the previous concurrent resolution version.

It’s very hard to defund the military. I don’t think it’s clear that the congress can allocate military funds for a specific purpose. And the Republicants won’t cut the military budget. I could be wrong about the congressional authority, haven’t looked at it that much.

[CoolHandCox]

@TriPolar

It’s very hard to defund the military. I don’t think it’s clear that the congress can allocate military funds for a specific purpose. And the Republicants won’t cut the military budget. I could be wrong about the congressional authority, haven’t looked at it that much.

It’s a good question, because it is very difficult to defund the military, regardless of reason. That’s never anything I would contest.

To be clear, I’m suggesting that Congress can defund the military for a specific war. I’m using “war” loosely; in this thread, I’m referring to America’s “war” in Libya. Congress has the authority to limit/cut off funds, see specifically here: [CRS Report: Congressional Authority to Limit U.S. Military Operations in Iraq (2008)]:

In the 1990s, Congress enacted section 8151 of the DOD Appropriations Act for Fiscal Year 1994, P.L. 103-139 (1993), which approved using armed forces for certain purposes including combat in a security role to protect United Nations units in Somalia, but cut off funding after March 31, 1994, except for a limited number of military troops to protect American diplomatic personnel and American citizens unless further authorized by Congress. Section 8135 of the DOD Appropriations Act for Fiscal Year 1995, P.L. 103-335 (1994), provided that, “None of the funds appropriated in this act may be used for the continuous presence in Somalia of United States military personnel, except for the protection of United States personnel, after September 30, 1994.”

(bolding/italics mine); just showing Congress can limit funds for a particular purpose or war. If you want a general cite, I can, but not this late at night. I’m sure the bill cited passed (but not positive), however if it’s in the CSR, it did. I’ll stake my life that Congress can limit funds for military purposes. I’ll cite more after the weekend, if needed.

So, to your point. It is hard to defund a military mission. I’m only speaking to specific deployments. It’s hard, but the Congress can do it. They always should do it when it’s right, no matter how the political winds are blowing. Money is greater than lives.

[CoolHandCox]

Today, State Department Legal Advisor Harold Koh testified in front of the Senate’s Foreign Relation Committee. Here’s a CNN Article on it (although it doesn’t cover much).

Koh testified the word “hostilities,” is an ambiguous term of art that was not defined in the WPR. The legislative history on the point is indeterminate (I disagree because in 1980 the OLC confirmed the leg. history in that “armed conflict” was substituted for hostilities). He said we shouldn’t use dictionaries to define hostilities (likely because they are to clear), but rather historical practice (which is unclear and gives the administration room to even make the argument).

Per Koh, the below make the mission in Libya not hostilities:

(1) The mission is limited.

(2) No exposure of our armed forces to death or serious risk of harm.

(3) The mission unlikely to escalate.

(4) We are using only limited military means (relative to the US military, of course). The WPR is concerned with broader engagements. Ninety percent of the airstrikes are by other countries.

All four of these together make this not hostilities, if one were missing, things would change for Koh. Further, as I believe DSeid stated previously in this thread, Koh said the WPR concerns the introduction of “U.S. armed forces,” and it is not clear that this applies to drones (i.e., we are not introducing armed forces into hostilities because it’s a drone, not a person).

Also, Senator Kerry seems to be supporting the administration, but unclear on the Executive’s actual argument (or just has his own version), because he stated there clearly were hostilities, but we have not introduced our armed forces into those hostilities (e.g., using drones =/ introduction, or, are planes fly to high =/ introduction, or, only supporting but not fighting =/ introduction). That’s actually how I would frame the argument, but totally disagree with the outcome.

[Sitnam]

@CoolHandCox

(4) We are using only limited military means (relative to the US military, of course). The WPR is concerned with broader engagements. Ninety percent of the airstrikes are by other countries.

I’m under the impression we have finished dropping bombs or sending missiles. Have there been recent attacks conducted by the US? I haven’t been able to find any.

[CoolHandCox]

@Sitnam

I’m under the impression we have finished dropping bombs or sending missiles. Have there been recent attacks conducted by the US? I haven’t been able to find any.

Posted earlier in this thread…June 20 NY Times Article

The most recent strike from a piloted United States aircraft was on Saturday [June 18], and the most recent strike from an American drone was on Wednesday [June 15], the officials said.

I inserted the dates based on a plausible reading as the previous Saturday, and the previous Wednesday, going backwards from June 20. I believe these would be considered recent. And they are likely to happen in the future because the President does not consider them hostilities.

[TriPolar]

We are only being hostile to one side. We’re being friendly to the other side. Does the WPR say anything about limiting friendliness?

[Sitnam]

@TriPolar

We are only being hostile to one side. We’re being friendly to the other side. Does the WPR say anything about limiting friendliness?

Well…looks like we’re killing both sides so I’d say yes.

[Recovering_Republican]

The ugly truth is that the War Powers Act is unconstitutional.

But the Executive Branch never brings it up in front of the SCOTUS to have it struck down, and Congress never actually enforces it when it’s violated, which every president since Nixon has.

The bigger issues in the Libya campaign are this.

1. Should we finally get the Hell out of NATO. If NATO can’t even squash a bug like Qadaffi (just like they couldn’t squash a bug like Milosevic) then it has no business calling itself a military alliance.

We should withdraw our forces to our own shores and let the Europeans spend the wealth they’ve been stealing from us to upgrade their own militaries.

2. Is there really a point here? It’s obvious the rebels can’t pull it together to topple Qadaffi like the Egyptians, Tunisians and Yemeni have rid themselves of their tyrannts.

[Sitnam]

Good point.