On Monday, the Trump administration’s use of military force against alleged drug smugglers in the Caribbean and Pacific will run afoul of the War Powers Resolution’s 60-day clock, which requires termination of such operations if the president has been unable to obtain affirmative congressional authorization. The administration, however, has reportedly come up with a legal argument for why the War Powers Resolution does not apply. As I explain here, that argument is incorrect and dangerous.
Background
On Sept. 2, the Trump administration began a campaign of lethal airstrikes against people it has labelled as “narcro-terrorists,” individuals alleged to be smuggling drugs on vessels in both the Caribbean and the Pacific. Based on the information disclosed by the administration, as of Nov. 2, the United States has conducted 15 such strikes killing 65 people. In addition, the U.S. military rescued two survivors from a strike in the Caribbean who were later repatriated to their home countries. (The U.S. military handed off the search for a third survivor in the Pacific to Mexico which eventually halted rescue efforts.)
The strikes—premeditated killings outside of any plausible armed conflict—have been widely condemned as unlawful or even criminal, including by a number of former U.S. government lawyers with experience in counterterrorism direct action and the use of military force. (See here, here, and here.) The Trump administration is also conducting this bombing campaign without congressional authorization—instead relying solely on the President’s purported authority under Article II of the Constitution. As a consequence, this military action is governed by the War Powers Resolution. And the administration is reportedly poised to breach this law as well.
In contravening the restriction of the War Powers Resolution, the Trump administration would circumvent legislative safeguards on military action and usurp Congress’s constitutional authority over the use of military force.
The War Powers Resolution and the 60-Day Clock
The statutory framework governing the unilateral use of military force by a president, such as the ongoing maritime strikes, is the War Powers Resolution. Congress enacted this law over President Nixon’s veto in 1973 to reassert the body’s constitutional prerogatives with respect to war and peace in the final stages of the Vietnam War. In essence, Congress sought to forestall any president from taking the country to war without congressional authorization or even without congressional awareness (as had allegedly been the case for aspects of the wars in South-East Asia, such as the incursion into Cambodia).
To this end, Section 4(a) of the Resolution establishes reporting requirements to prevent the president from taking the country to war whether or not in secret. In the absence of a declaration of war or other statutory authorization, the executive branch is subject to multi-tiered obligations to report to Congress within 48 hours of certain activities by U.S. armed forces.
First, under subsection 4(a)(1) the Executive must report when U.S. military forces are introduced into “hostilities” or introduced into “situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Such hostilities reports are the focus of this essay.
Second, even if U.S. forces are not engaging in hostilities, subsection 4(a)(2) requires the Executive to report the introduction of “combat equipped” forces into a country (the executive branch defines “combat-equipped” as forces equipped with crew-served weapons such as machine guns requiring more than one person to operate and mortars).
Third, pursuant to subsection 4(a)(3), the president must also report a substantial enlargement of such combat equipped forces in a country where such forces are already present.
Notably, under Section 5(b) of the 1973 Resolution, the submission of a report under the first of these scenarios — introduction of U.S. forces into hostilities or situations of imminent hostilities — also starts a 60-day clock for the withdrawal of U.S. armed forces from such hostilities unless Congress declares war or otherwise enacts specific statutory authorization for the use of force.
As an aside: The War Powers Resolution provided a mechanism in section 5(c) for Congress to order the removal of U.S. forces from hostilities through a concurrent resolution—that is, a resolution passed by both houses of Congress but not presented to the president for his or her signature or veto. Particularly following the Supreme Court’s 1983 decision in INS v. Chadha that ruled unconstitutional the legislative veto, section 5(c) is widely viewed as unconstitutional. In the wake of Chadha, Congress enacted expedited procedures for joint resolutions requiring the removal of U.S. armed forces from hostilities, which does require presentment to the president. The Senate recently voted on just such a joint resolution to block further strikes in the Caribbean, which failed to pass. A vote on another bipartisan Senate resolution to bar military action in Venezuela is expected soon.
Although Congress did not define “hostilities,” or “imminent involvement in hostilities,” in the text of the statute, the legislative history shows that Congress intended those terms to be construed broadly to establish a low threshold for both the reporting and withdrawal provisions of the War Powers Resolution. The House Foreign Affairs Committee’s report on the Resolution explains:
The word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, hostilities also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict. “Imminent hostilities” denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict. (bolded emphasis added)
Unsurprisingly, the executive branch has espoused different, narrower interpretations of these terms that are less likely to constrain the president’s ability to use military force without congressional authorization. In the most oft-repeated formulation, the State Department’s Legal Adviser informed Congress in a 1975 letter that its working definition of “hostilities” meant “a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces.” “Imminent hostilities” means, according to the letter, “a situation in which there is a serious risk from hostile fire to the safety of United States forces.”
As a matter of statutory interpretation, it would be dubious to assign greater weight to the post-enactment views of the executive branch compared to the pre-enactment interpretation of the legislature that passed the statute over the president’s veto.
In practice, administrations of both parties have routinely treated military actions such as airstrikes, in which US forces were not in harm’s way, as “hostilities” for the purposes of the War Powers Resolution (see a catalog of dozens of such reports at the War Powers Reporting Project). Examples of such standoff strikes treated and reported as hostilities include:
- The Clinton administration reporting Tomahawk missile strikes against Afghanistan and Sudan in 1998 in retaliation for al Qaeda’s bombing of US embassies;
- The Obama administration reporting strikes on Houthi radar facilities in Yemen in 2016;
- The first Trump administration reporting strikes against the Syrian government in 2017 and 2018 in retaliation for the use of chemical weapons;
The War Powers Resolution and the Maritime Strikes
The Trump administration is relying solely on the President’s supposed authority under Article II of the Constitution as Commander-in-Chief and Chief Executive to bomb these supposed drug smuggling vessels. Thus, consistent with section 4(a)(1) of the War Powers Resolution, the White House reported the first airstrike (which occurred on Sept. 2) to Congress in a Sept. 4 letter. This report triggered the start of the Resolution’s 60-day clock—set to expire on Nov. 3.
But as this deadline approached, the Trump administration shifted its view on whether these strikes constitute “hostilities” under the 1973 law, according to reporting by the Ellen Nakashima and Noah Roberston in the Washington Post and Charlie Savage and Julian Barnes in the New York Times. The head of the Office of Legal Counsel at the Department of Justice reportedly informed a small group of lawmakers that the maritime strikes did not constitute “hostilities.”
An anonymous senior administration official told the Washington Post that the War Powers Resolution doesn’t apply to the maritime strikes because, “even at its broadest … [it] has been understood to apply to placing U.S. service-members in harm’s way.” According to this official, “[t]he operation comprises precise strikes conducted largely by unmanned aerial vehicles launched from naval vessels in international waters at distances too far away for the crews of the targeted vessels to endanger American personnel.” Thus, “the kinetic operations underway do not rise to the level of ‘hostilities,’” according to the administration’s view.
Libya Redux?
The Trump administration’s effort to circumvent the War Powers Resolution’s 60-day deadline by arguing that U.S. airstrikes “do not rise to the level of ‘hostilities’” echo (perhaps unintentionally) arguments made by the Obama administration in 2011 with respect to the military intervention in Libya. In that situation, (as reported by Charlie Savage in Power Wars) executive branch lawyers were divided over whether the United States would be legally required to curtail military engagement in the intervention as a result of the 60-day clock. Despite the opposing view of the Office of Legal Counsel, the Obama administration ultimately adopted the position that U.S. operations—including airstrikes—did not amount to “hostilities” due to a combination of four factors.
1) The U.S. mission was limited, and involved U.S. forces playing a “supporting role” for NATO in implementing a U.S. Security Council Resolution.
2) The exposure of U.S. armed forces to harm was limited, including because of the absence of ground troops.
3) The risk of escalation was limited, again due to the absence of U.S. ground forces.
4) Military means used by the United States were limited, with airstrikes being “confined, on an as-needed basis, to the suppression of enemy air defenses to enforce the no-fly zone, and to limited strikes by Predator unmanned aerial vehicles against discrete targets in support of the civilian protection mission.”
The Obama administration’s interpretation of “hostilities” was not well received, including by the U.S. Congress. The Senate Foreign Relations Committee approved legislation on a bipartisan basis stating 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)).
In addition, several Republican Senators, including Rand Paul, Mike Lee, Ron Johnson, and John Cornyn, wrote to President Obama, taking the position that U.S. military operations in Libya constituted “hostilities” and that by virtue of the War Powers Resolution, they would be required to terminate within 60 days. Over on the House side, in 2011, Republicans who now serve in the Senate – Bill Cassidy, Shelley Capito, and Tim Scott – and the cabinet – Secretary Kristi Noem – voted for a bipartisan measure that would have directed the President to terminate the operations “pursuant to section 5(c) of the War Powers Resolution.” A few days later, the Republican Speaker of the House John Boehner sent a letter to the President stating the administration would be “in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.”
On its face, the multi-factor theory as to how the Libya intervention did not constitute “hostilities” appears less permissive than what we know of the Trump administration’s argument with respect to its maritime strikes.
Flaws with the Administration’s Reported Interpretation of Hostilities
There are many flaws with the Trump administration’s reported interpretation of hostilities. As indicated in the legislative history, Congress understood the term “hostilities” to apply broadly, more broadly than “armed conflict.” The Obama administration’s prior attempt to restrictively interpret the term garnered strong bipartisan congressional opposition.
Moreover, the War Powers Resolution was enacted not only against the general backdrop of the Vietnam War, but more specifically President Nixon’s legally contested aerial bombing of Cambodia in 1973 (Operation Freedom Deal) which Congress sought to terminate through funding restrictions. As Representative Zablocki (a key architect of the War Powers Resolution) explained, “[w]hat really helped the war powers legislation was the arrogance of the executive branch in saying ‘We’ll bomb Cambodia as long as we desire, regardless of what Congress says.'” It thus beggars belief that Congress somehow intended the War Powers Resolution not to cover U.S. airstrikes.
Further, as noted above, the executive branch under presidents of both parties (including the current president) have treated airstrikes—even involving standoff weapons where the risk to U.S. forces was minimal—as “hostilities” and reported them to Congress accordingly under the Resolution. Indeed, the Trump administration itself seems to have implicitly taken this position when it submitted its Sept. 4 War Powers Report to Congress.
There is also significant tension between the Trump administration claiming on the one hand that the United States suffered an “armed attack” and U.S. armed forces are engaged in a “non-international armed conflict” with respect to these strikes and simultaneously arguing that the strikes are not “hostilities.” That is tenuous on its own. What’s more, as discussed above, the legislative history of the War Powers Resolution shows that Congress included “hostilities” because it is a broader term than “armed conflict.” So, for the administration to claim U.S. forces are in an armed conflict but not hostilities would be nonsensical to those members of Congress who passed the legislation.
Implications
The implications of the Trump administration’s reported interpretation of “hostilities” are significant.
First, the U.S. government can continue its killing spree at sea, notwithstanding the time limits imposed by the War Powers Resolution.
Second, the executive is arrogating to itself greater power over the use of force that constitutionally is the prerogative of Congress. The administration’s theory places a broad swath of common U.S. military action—standoff strikes with little risk to U.S. forces—outside the scope of the War Powers Resolution and its restrictions. And the White House is doing so while it postures not only for further killing at sea, but also for possible military action against Venezuela.
Third, this legal theory could further complicate congressional efforts to rein in unauthorized military action by this and future presidents. Significant congressional tools in this area depend on fast track mechanisms linked to the War Powers Resolution, which turn on the term “hostilities.” Going forward, the executive branch may take the position that legislation to require the removal of U.S. armed forces from “hostilities” is defective or ineffective to the extent that standoff strikes do not constitute “hostilities.”
Conclusion
That the Trump administration would resort to creative lawyering to circumvent the limits of the War Powers Resolution is hardly a surprise and was indeed forecasted by my former State Department colleagues Rebecca Ingber and Jessica Thibodeau. It nonetheless is yet another legal abuse and arrogation of power by the executive. And it is a power grab in the service of killing people outside the law based solely on the President’s own say so.
Congress needs to push back against this attempt by the White House to further encroach upon its constitutional prerogatives on the use of military force. The legislative branch should reject the executive’s strained legal interpretation of the War Powers Resolution, including possibly in legislation. Congress should also continue efforts to halt these killings at sea and block an unlawful attack on Venezuela.
The administration’s creative lawyering here should also serve as another reminder of the need for longer term structural reform of the War Powers Resolution, such as, for example, that proposed in the bipartisan National Security Powers Act. Such legislative reform should include defining “hostilities” in order to limit the sort of legal gamesmanship this and previous administrations have engaged in with respect to the time limits imposed on unauthorized military action.
As we are witnessing in the Caribbean and the Pacific, the stakes are a matter of life or death.
