The War Powers Clock(s) in Iraq

Jack Goldsmith has a very helpful post up on Lawfare, explaining that the President had issued three separate War Powers notifications to Congress over the past month with respect to U.S. uses of force in Iraq against ISIL.  (Among its other virtues, Jack’s post provides links to virtually all of President Obama’s WPR reports, from June 2009 up through last week.  As noted below, the President issued another WPR report today.)

First, and most widely known, on August 8 the President informed Congress that he had authorized U.S. Armed Forces to conduct “targeted airstrikes in Iraq,” which were to be “limited in their scope and duration as necessary to protect American personnel in Iraq by stopping the current advance on Erbil by the terrorist group Islamic State of Iraq and the Levant and to help forces in Iraq as they fight to break the siege of Mount Sinjar and protect the civilians trapped there.”  Those airstrikes began on August 8.

Nine days later, on August 17, the President sent Congress a second War Powers notification, explaining that he had authorized Armed Forces to conduct targeted airstrikes in Iraq, also “limited in their scope and duration,” “as necessary to protect American personnel in Iraq by stopping the current advance on Erbil by the terrorist group Islamic State of Iraq and the Levant and to help forces in Iraq as they fight to break the siege of Mount Sinjar and protect the civilians trapped there.”  Those airstrikes commenced on August 15.

Last Monday, September 1, the President notified Congress that he had authorized Armed Forces “to conduct targeted airstrikes in support of an operation to deliver humanitarian assistance to civilians in the town of Amirli, Iraq, which is surrounded and besieged by ISIL,” that such targeted strikes had begun on August 30, and that they, too, “will be limited in their scope and duration as necessary to address this emerging humanitarian crisis and protect the civilians trapped in Amirli.”

Today, the President submitted a fourth such ISIL-related WPR Report.  It notifies Congress that on Saturday, September 6, “U.S. Armed Forces commenced targeted airstrikes in the vicinity of the Haditha Dam in support of Iraqi forces in their efforts to retain control of and defend this critical infrastructure site from ISIL.  These additional military operations will be limited in their scope and duration as necessary to address this threat and prevent endangerment of U.S. personnel and facilities and large numbers of Iraqi civilians.”

What do these four reports portend in terms of the running of the WPR “60-day clock”?

Section 5(b) of the WPR provides that 60 days after such a report “is required to be submitted” under section 4(a)(1) by the introduction of Armed Forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” the President “shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted),” unless Congress has in the interim enacted a law authorizing such use of the Armed Forces.  If this Section 5(b) clock began to run from the first introduction of forces into hostilities in Iraq, on August 8, and if the clock has continued to run since that date and does not stop running as long as Armed Forces intermittently continue to perform some bombing operations in Iraq, then presumably the President be required to remove forces from Iraq (and stop strikes) as of October 7.

Jack raises the possibility that the President has filed three (now four) separate ISIL Reports, rather than one, in order to be able to continue using force in Iraq beyond October 7–presumably until Congress enacts an ISIL-specific force authorization statute sometime after the November 5 elections.  The argument in support of this view, as I understand it, would be something like the following:  On the one hand, imagine that the President had submitted only a single WPR report, on August 8, that would have broadly covered all contemplated uses of force against ISIL in Iraq going forward.  If the “hostilities” (or anticipated hostilities) were defined at that level of generality, then Section 5(b) would require that any and all such hostilities against ISIL in Iraq cease as of October 7 (assuming Congress has not authorized force in the interim).  But by characterizing the uses of force as four distinct operations, each subject to its own WPR report, the President assures that the clock does not run continuously:  It stops whenever the particular operation is complete, and starts again from “Day One” only with the commencement of another, distinct operation.  In between such operations, on this view, the Armed Forces are not either engaged in hostilities or introduced “into situations where imminent involvement in hostilities is clearly indicated by the circumstances”–gaps of inactivity during which the WPR clock does not tick.

If this is, indeed, what the Administration plans to argue if and when troops in Iraq engage in hostilities beyond October 7, Jack argues that such a theory would be an effort to “circumvent” (or “avoid” or “gut”) Section 5(b)’s 60-day requirement.  Jack acknowledges that such “discrete mission reporting”–and, presumably, a WPR clock re-setting–“fits reasonably well with the text of the WPR,” but he writes that “of course” it would be inconsistent with the WPR’s “spirit.”

My view is in some sense the converse:  Such a post-October 7 argument by the Administration might raise issues under the WPR’s text (see below), but I’m not so sure it would be inconsistent with the statute’s “spirit,” at least not in these circumstances.

For starters, let’s consider the “spirit” of the law–and its objectives–before moving to the textual requirement.

The four Obama WPR reports in question describe discrete missions with very limited and targeted objectives.  The Armed Forces have undertaken those missions in a nation that has urged our assistance–each of the three reports emphasizes that “[t]hese actions are being undertaken in coordination with the Iraqi government”–in circumstances where the risk to U.S. blood and treasure apparently is minimal.  Moreover, and in contrast to the contemplated Syrian intervention in 2013, there is no prospect of these operations breaching any U.S. treaty or other international law obligations, and (as far as I know) there is widespread international support for the U.S. interventions thus far.  These particular operations, in other words, do not appear to raise significant concerns analogous to those that animated the framers’ insistence on the support of both political branches for the initiation of “war” (see Bill Treanor’s article here, and my related post here, describing and provisionally defending what I call the Clinton/Obama middle ground, or “third way,” understanding of the President’s constitutional authority to initiate hostilities without statutory authorization), or the concerns that prompted Congress to enact the War Powers Resolution.

Moreover, by all accounts there is widespread support in Congress for these limited missions, and congressional leaders have given the President their blessing.  (The reports each state that the President “appreciate[s] the support of the Congress in this action.”)  Indeed, although I can’t say for certain, I’m not aware of any members of Congress who oppose these particular missions.  To be sure, Congress has not authorized them by statute, and that failure obviously matters for purposes of determining whether the President complies with the legal requirements of the statute as time goes on (see below).  In this case, however, such congressional inaction appears not to be the result of any significant opposition, but instead is principally the function of two other factors:  (i) that there is a great deal of uncertainty in Congress about the form such authorization should take (in particular, whether it should permit expanded, long-term operations against ISIL, especially in Syria, a question that will require much more extensive debate); and (ii) that virtually no one in Congress is willing to vote on anything of significance before the November 5 election.

So far as the “spirit” of the WPR is concerned, then, these operations would hardly appear to be akin to “war” in the constitutional sense, or to raise the principal concerns that prompted enactment of the WPR; indeed, both political branches appear to be on the same page with respect to these limited missions.

Things would, of course, be very different if the President were to initiate the sort of sustained, long-term operation against ISIL that he described in Wales last Friday and that he will describe in further detail this Wednesday–one designed to significantly degrade or “dismantle” ISIL’s overall capabilities, including by the targeted use of force against ISIL leaders–especially if the use of force is to expand into Syria, which would raise much more serious questions of international law and legitimacy.  Plans for such a significant expansion of hostilities presumably will be subject to legislative debate–and ideally the President and Congress would agree on the scope and nature of the U.S. involvement for such a military campaign.

As I see it, then, the more serious WPR question raised by the limited operations against ISIL thus far is with respect to the statute’s text, not its spirit.  The issue is this:  The text of the statute indicates that, no matter whether the President submits one or a dozen WPR reports, the 60-day clock would appear to continue to run–even if the Armed Forces cease the use of force for days or weeks at a time–if U.S. Forces remain in a “situation[] where imminent involvement in hostilities is clearly indicated by the circumstances.”  Whether or not they do remain in such a situation at any particular time, however, depends upon a complex array of facts about the situation in Iraq–largely undisclosed facts that are almost impossible for those of us outside the government to assess, but that members of Congress presumably can evaluate.

For example, assume that even after their operations with respect to Erbil and Mount Sinjar were finished, U.S. troops remained in a “situation[] where imminent involvement in hostilities is clearly indicated by the circumstances”–say, for instance, that the President contemplated that those forces would have continuing, imminent involvement in other hostilities, beyond those described in the August 8 WPR report.  In such a case the clock triggered by those first hostilities presumably would continue to run . . . until such time as the forces were not in a “situation” in which imminent involvement in hostilities was clearly indicated by the circumstances.”

By contrast, suppose that the Erbil and Mount Sinjar operations were completed in a few days, and thereafter U.S. troops did not, in fact, remain in a “situation[] where imminent involvement in hostilities [was] clearly indicated by the circumstances.”  In that event, the WPR clock would, indeed, have stopped at the completion of that operation, and a new 60-day clock would have begun only with the commencement of the next operation, on August 15.

The operation of the clock, in other words, is determined not by the President’s characterization of the number or type of operations in one or more WPR reports, but instead by the actual facts on the ground:  If the “use” of the Armed Forces “with respect to which such report was submitted (or required to be submitted)”–included placing them in a “situation” in which imminent involvement in hostilities is clearly indicated by the circumstances”–has already ended, then the clock stops, and it restarts only upon the next such “use” (if any) of forces (again, including their deployment into a “situation[] where imminent involvement in hostilities is clearly indicated by the circumstances”).

This notion is easiest to grasp in the case where ground troops are introduced into a foreign nation.  Even if that deployment were intended only for a discrete, time-limited operation, if the troops remained in the country thereafter and there is a clear indication that they would have further imminent involvement in hostilities, the clock would continue to run even though their designated operation has ended.

But the question is much more difficult to parse in a case of targeted airstrikes, in which military actors employ force for a very short period for a discrete purpose and then, within hours, find themselves on an airbase many miles outside the country, out of harm’s way.  When it comes to such operation-specific airstrikes, it will often be the case that strikes are interrupted by periods during which there is no clear indication of any further, imminent involvement of U.S. forces in hostilities.  And in such cases, as Jack suggests, the language of the WPR indicates that the clock might expire during those lulls.

We on the outside have no reliable way of knowing whether this has been or will be the case in Iraq.  In his important speech last week, NCTC Director Matt Olsen revealed that in the past month the U.S. has conducted more than 120 air strikes in support of Iraqi and Kurdish security forces.  Perhaps, then, there have not been any breaks during which there was no clear indication of our forces’ further, imminent involvement in hostilities, in which case the clock that began on August 8 continues to run.  Or perhaps there have been such breaks.

This heavily fact-dependent question about possibly intermittent hostilities or other triggering “uses” of the armed forces is not a new one.  Ever since Congress enacted the WPR in 1973, the political branches have publicly contemplated, and occasionally disagreed about, when the 60-day clock might stop in the gaps between intermittent hostilities (or the imminent threat thereof).  Here are just a few of the historical highlights:

— Beginning shortly after Congress enacted the WPR, the Executive branch adopted a constrained interpretation of the key terms in section 4(a)(1).  During a 1975 hearing examining the WPR compliance of the Ford Administration, House Foreign Affairs Committee chair Clement Zablocki asked State Department Legal Advisor Monroe Leigh for the Administration’s working definition of “hostilities.”  In a letter dated June 3, 1975, Leigh and Department of Defense General Counsel Martin Hoffman responded that the terms “hostilities” and “imminent involvement in hostilities” are “definable in a meaningful way only in the context of an actual set of facts,” and that “[r]easonable men might well differ as to the implications to be drawn from any such hypothetical situation.”  Subject to those “caveats,” Leigh and Hoffman explained that the Ford Administration had understood “hostilities” to mean “a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces, and ‘imminent hostilities’ was considered to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces.”  Importantly for present purposes, they added that “[i]n our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area.”  Chairman Zablocki expressed some skepticism about this reading at a subsequent hearing, but Congress did not further clarify the terms.

— In a 1980 memorandum on the WPR, the Office of Legal Counsel of the Department of Justice adopted the Leigh/Hoffman view; it opined that “hostilities” means “a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces,” and “imminent hostilities” means “a situation in which there is a serious risk from hostile fire to the safety of United States forces.”  “[N]either term necessarily encompasses irregular or infrequent violence which may occur in a particular area,” OLC wrote, and “the term ‘hostilities’ should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad” because “[s]uch situations do not generally involve the full military engagements with which the Resolution is primarily concerned.”  4A Op. O.L.C. at 193-194.  (As far as I know, the Carter Administration had no occasion to act in reliance upon this interpretation.)

— In 1983, President Reagan did not submit a WPR report to Congress after four Marines were killed and 38 others wounded in Lebanon.  Defenders of the President’s inaction argued that “hostilities” were not present because the Marines had only returned (rather than initiated) fire in self-defense and had been on a peacekeeping mission.  A Senate Report rejected those arguments:  “There is nothing in the legislative history of the War Powers Act to indicate that . . . these considerations would alter the fact that ‘hostilities’ are indicated, . . . nor is it necessary or sufficient that fatalities occur in order to conclude that hostilities are involved.  [I]n short, the exchange of fire with hostile forces would indicate an outbreak of hostilities.”  S. Rep. 98-242 at 7.  Congress then enacted a separate statute requiring removal of the troops from Lebanon within 18 months.  That statute contained a provision stating that “Congress determines that the requirements of section 4(a)(1) of the War Powers Resolution became operative on August 29, 1983,” i.e., when the Marines were attacked.  Pub. L. 98-119, sec. 2(b), 97 Stat. 805 (1983).  In his signing statement, however, President Reagan suggested an interpretation of section 4(a)(1) quite a bit narrower than even the Leigh/Hoffman/OLC reading:  He wrote that “with regard to the congressional determination that the requirements of section 4(a)(1) of the War Powers Resolution became operative on August 29, 1983, I would note that the initiation of isolated or infrequent acts of violence against United States Armed Forces does not necessarily constitute actual or imminent involvement in hostilities, even if casualties to those forces result.  I think it reasonable to recognize the inherent risk and imprudence of setting any precise formula for making such determinations.”

— On June 10, 1993, President Clinton reported to Congress that U.S. armed forces in Somalia had executed military strikes to assist in quelling violence against a United Nations peacekeeping operation.  U.S. fighting in Somalia continued over the following weeks.  Some members of the House suggested that the U.S. forces in Somalia were clearly in a situation of hostilities or imminent hostilities, and therefore that if Congress did not authorize the troops to remain, the WPR would require the President to withdraw the forces by early August 1993.  In response to an inquiry about the 60-day clock from House Foreign Affairs Committee Ranking Minority Member Benjamin Gilman and Senate Foreign Relations Committee Ranking Minority Member Jesse Helms, Assistant Secretary of State Wendy Sherman wrote on July 21, 1993, that  “no previous Administration has considered that intermittent military engagements involving U.S. forces overseas, whether or not constituting ‘hostilities,’ would necessitate the withdrawal of such forces pursuant to section 5(b) of the Resolution,” because the 60-day limit “was intended to apply to sustained hostilities so as to ensure that the collective judgment of both Congress and the President would be applied to decisions about whether to go to war.”  This somewhat confusing statement appears also to have been broader than the Leigh/Hoffman/OLC view, insofar as it suggested that even where there are hostilities, the 60-day limit is inapposite as long as those hostilities are “intermittent.”  (The Leigh/Hoffman/OLC view, as I understand it, instead viewed the “intermittence” question as one possible component in defining “hostilities” or the risk thereof.)  Representative Gilman wrote back to the Secretary of State, contending that even where actual military engagements are “intermittent,” the subsection 5(b) clock continues to run if, during the intervals between engagements, it remains the case that “imminent involvement in hostilities is clearly indicated by the circumstances.” As far as I know, the Secretary did not respond to Gilman.  President Clinton—perhaps acting upon the Sherman interpretation—did not withdraw troops from Somalia after 60 days, after which Representative Gilman publicly worried that August 4, 1993 might be remembered as the day the War Powers Resolution “died” because Congress had “decided to look the other way” when the statutory clock expired.  (Some years later, Jamie Baker, the Legal Adviser to the National Security Council from 1997-2000, wrote that the Executive branch practice in Somalia was based upon the “good faith” view that hostilities were intermittent rather than continuous, and that therefore “the clock never tolled.”  Whether or not officials actually entertained such a “good faith” view of the facts in that case is uncertain, however.  “[I]n retrospect,” Baker somewhat cryptically added, it “was clear to Executive branch actors and their lawyers in Washington that during the summer and into the fall of 1993, U.S. forces were in fact engaged in continuous [indeed, daily] combat in Somalia, most notably with the warlord Mohammad Aideed.”)

— It is possible, but uncertain, that a similar interpretation was at work with respect to the deployment of U.S. aircraft to Bosnia in support of a NATO-enforced “no-fly” zone in 1994.  In that case, President Clinton reported to Congress in March and April 1994 that U.S. forces had fired against Serbian forces.  There was no withdrawal of U.S. forces 60 days after either WPR report; and then in August and again in November of that year, President Clinton filed separate WPR reports of additional U.S. strikes against Serbian forces, thereby suggesting (without stating) that the Administration might have concluded that “hostilities” and a “clear indication” of “imminent hostilities” had perhaps terminated sometime after each discrete operation, and that a new 60-day clock began running upon each resumption of active engagement with or against the Serbs.

* * * *

I do not mean to express any view here on whether and to what extent these historical Executive interpretations respecting the WPR are correct—or whether they fairly reflect the intent of the 1973 Congress.  The more important point, for present purposes in Iraq, is that the political branches appear to agree on at least one thing–namely, that the question is deeply fact- and context-dependent.  The common Executive branch formulations, for example, do not state that “irregular or infrequent violence which may occur in a particular area” can never constitute hostilities,” or never stop the clock in between particular operations, but merely that the clock does not “necessarily” run in such circumstances.  Evidently, each case raises different questions under the law.

The historical executive branch statements quoted above have focused on at least two distinct criteria, often without clarifying which are necessary, and which are sufficient, to trigger the the WPR clock and to keep it running:  (i) the risk of harm to U.S. forces from an exchange of fire and (ii) the regularity of the use of force by or against U.S. forces (that is, whether there are intermittent periods without the use of force or a “clear indication” that hostilities were imminent).

Notably, the Obama Administration has disclaimed the mistaken view, oft-suggested by the Executive branch, that there cannot be “hostilities” in a given case where there is little or no risk of harm to U.S. forces because there is no “exchange” of fire–the nature and scope of the U.S.’ use of force does itself matter for the WPR question, according to this Administration.  (See Harold Koh’s testimony on Libya at pages 15 (“we in no way advocate a legal theory that is indifferent to the loss of non-American lives”), 24, 58 (“our analysis [of ‘hostilities’] does take into consideration the lethality of ordnance used, the damage inflicted by U.S. forces, and the size of the U.S. force”; “both the number and nature of U.S. drone strikes are significant to the ‘hostilities’ determination, although in the abstract, it is difficult to state precisely what level of U.S. kinetic force, standing alone, would be sufficient to trigger the pullout provision in any given situation”).)

This Administration has not yet had occasion, however, to opine on the question of how the WPR clock operates in a case of “intermittent” hostilities (or intermittent lapses of situations “where imminent involvement in hostilities is clearly indicated by the circumstances”).  Perhaps, as Jack Goldsmith suggests, there may be an occasion for such a legal assessment come October 7.  If so, and if the discrete and targeted operations described in the President’s four recent war powers reports have ended, and U.S. armed forces are no longer engaged in hostilities, then whether the clock continued to run continuously between August 8 and October 7 will depend on whether U.S. forces remained in a “situation” over that period in which “imminent involvement in hostilities” remained “clearly indicated by the circumstances.”  Time will tell. 

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Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).