Wednesday, June 29, 2011

A Possible Compromise on Libya and War Powers

Marty Lederman

The Senate Foreign Relations Committee yesterday approved (by a 14-5 vote) S.J. Res. 20, the Kerry/McCain authorization for the operation in Libya. Section 2(a) of that bill would authorize the President "to continue the limited use of the United States Armed Forces in Libya, in support of United States national security policy interests, as part of the NATO mission to enforce United Nations Security Council Resolution 1973 (2011) as requested by the Transitional National Council, the Gulf Cooperation Council, and the Arab League"--an authorization that would expire one year after enactment.

Even if the full Senate were to approve that authorization, it would not likely become law, because the House overwhelmingly rejected a virtually identical bill last Friday.

But the Senate bill will not be identical to the one the House rejected, because just before voting on that resolution, the SFRC also approved two amendments thereto offered by Senator Lugar that just might be the key to a successful compromise. The first approved Lugar amendment would add a specific restriction to the authorization in S.J. Res. 20, to wit: "None of the funds appropriated under any provision of law may be obligated or expended to deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya unless the purpose of the presence is limited to the immediate personal defense of United States Government officials (including diplomatic representatives) or to rescuing members of NATO forces from imminent danger." The Kerry-McCain version of the resolution that the House rejected contains a statement that "Congress does not support" such use of grounds forces; but the Lugar Amendment goes beyond that, establishing a binding legal restriction on such use. As such, it might be more palatable to some House members.

Perhaps of greater importance, the second adopted Lugar amendment would specifically provide that "United States military operations in Libya since April 4, 2011, which have included non-kinetic support to the NATO-led operations, including intelligence, logistical support, and search and rescue assistance, United States aircraft assisting in the suppression and destruction of air defenses in support of the no-fly zone, and precision strikes by unmanned aerial vehicles, constitute hostilities within the meaning of the War Powers Resolution, and may be carried out only under the conditions specified in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b))."

The effect of this second Lugar Amendment, were it to become law, would be not only to reflect a congressional disagreement with the President's views on whether the Libya operations since April 4th have constituted "hostilities" for purposes of the War Powers Resolution, but also to establish going forward, as a matter of law, that those operations constituted "hostilities"--an interpretation of the the WPR that would (unlike the Executive's contrary reading) be binding in the future. Accordingly, not only would it stand as a legislative rebuke to the President's construction of the statute, but in addition it would establish a legal precedent on the meaning of the term "hostilities" that the Executive would be compelled to take into account in assessing the application of the WPR 60-day clock for future military operations. In that respect, the Kerry/McCain resolution, with this Lugar Amendment, would be both an authorization of the current Libya operation, and a statutory constraint on the Executive--a rare congressional pushback that serves, as a practical matter, to "enforce" the WPR. [UPDATE: It is, in fact, the sort of "grand bargain" that Bruce Ackerman and Oona Hathaway proposed several weeks ago.]

The Lugar Amendments, therefore, might prove to be an ingenious compromise that might be acceptable to a majority of House members, in a way the stand-alone Kerry/McCain resolution was not.

One other loose end:

The second Lugar amendment also provides that, "[c]onsistent with section 8(a)(1) of the War Powers Resolution (50 U.S.C. 1547(a)(1)), Congress declares that [the authorization in S.J. Res. 20] is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b))," and further provides that "[n]othing in this joint resolution supersedes any requirement of the War Powers Resolution." Accordingly, if it were to become law, it appears that S.J. Res. 20 would be the rare example of Congress actually acting as the War Powers Resolution contemplates, i.e., to satisfy that law's conditions--rather than enacting a separate authorization law that does not satisfy the terms of the WPR but instead supersedes its requirements (which is what Congress did through an appropriations law respecting Kosovo in 1999).

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