Does the Administration consider the War Powers Resolution applicable in Iraq?

Some might think a recent report in the Washington Post provides significant information on the administration’s views on the applicability of the War Powers Resolution (WPR) to Iraq—but I don’t think so. A key legal question is whether the WPR applies to ongoing military operations against ISIS such that the President will have to obtain affirmative congressional authorization after the WPR 60-day clock expires.

Here’s the key language from the WaPo article:

“For its part, the administration expects to continue airstrikes in Iraq for the foreseeable future, although it is ‘mindful’ that it will soon have to address the 60-day war powers restriction, the senior official said.”

Bobby Chesney, over at Lawfare, quotes the above excerpt and concludes that the administration seems to be taking a very different approach than it did in Libya when it maintained that the WPR did not apply. He writes:

“Either the administration does not want to relive the criticism it got there [on Libya], or it accepts that such arguments will not fly here given the factual differences …. At any rate, they seem to consider the clock to be ticking this time around.”

I don’t read the quoted passage the same way. The senior official appears to have revealed little or nothing. The official seems to be saying only that the administration recognizes that it will soon have to “address” the question of the WPR’s applicability. As the clock runs out, the White House will need to accept that the letter of the Resolution applies or present a legal theory why it doesn’t. By that point, there may also be different facts on the ground. Recall that in the Libya case, the administration argued, in part, that its recent handoff of kinetic operations to NATO was an important factor in determining that the WPR was inapplicable.

How much significance should we place on the fact that WaPo included the senior official’s statement? First, news outlets often repeat officials’ remarks even though the core statement, when parsed precisely, reveals essentially nothing of import. Second, the WaPo story is very muddled on its view of the WPR. As Bobby shows with great skill elsewhere in his post, the WaPo story mistakenly suggests that the administration thinks the WPR can provide the President affirmative congressional authority (an independent legal basis) to use force before the 60-day clock expires.

At least based on the WaPo article, the administration has yet to show its cards on the WPR question. But the time for ambiguity is running out. 

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Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.