Presidents have filed approximately two dozen reports “consistent” with, but not under, the War Powers Resolution. The record is checkered at best. On the whole, the experience has justified Arthur M. Schlesinger, Jr.’s characterization of the statute as a “toy handcuff,” for it has not effectuated the collective judgment of the two branches sought by Congress. While most of those military actions have been short-lived, they were terminated solely by the President.
President Gerald Ford, the first President covered by the statute, filed reports with Congress on three occasions in April 1975—all regarding the use of military force to help evacuate American citizens and refugees from Vietnam and Cambodia. But in each of these reports, Ford advanced the Commander in Chief Clause, and not statutory sources, as authority for his actions. In May 1975, Ford ordered Marines to recapture a U.S. merchant vessel, the SS Mayaguez, which had been seized by the Cambodian navy. Ford’s report was the first and, until one filed by President Barrack Obama in 2011 regarding military activities in Libya, the only report that specifically cited section 4(a)(1). The time-limit issue was moot, however, because Ford’s report was filed after the military operation had been completed. Controversy surrounded those early tests of the War Powers Resolution. The Ford Administration contended that it had satisfied the consultation requirements because it had notified congressional leaders prior to the introduction of armed forces. Members of Congress argued that consultation requires solicitation of congressional opinion prior to a decision to commit U.S. forces and that the premise and promise of collective judgment had been violated.
In 1980, President Jimmy Carter filed a report with Congress on his unsuccessful effort to rescue American hostages in Iran. Carter submitted the report “consistent” with the War Powers Resolution but like Ford claimed authority for his action as Commander in Chief and Chief Executive. Carter defended his refusal to consult with Congress in advance on two grounds: the mission was a rescue attempt, not an act of aggression against Iran, and it depended on total surprise.
In April 1986, President Reagan announced that there was irrefutable evidence of Libyan involvement in recent terrorist strikes, and in response he ordered bombing strikes on military installations and other facilities in Libya. Reagan engaged in no meaningful consultation prior to the air strikes, and while he reported to Congress, he did not cite section 4(a)(1). Reagan invoked the Commander in Chief Clause as authority and justified the bombings as an act of “self defense” and a deterrent to further Libyan terrorism.
In response to the attack on the United States on September 11, 2001, President George W. Bush, on October 7, addressed the nation on the air strikes that he had ordered against the Taliban regime in Afghanistan. The purpose of the military action, he said, “was to disrupt the use of Afghanistan as a terrorist base of operations and to attack the military capability of the Taliban regime.” Unlike his recent predecessors in the Oval House who had initiated military hostilities without seeking prior authorization from Congress, President Bush, to his credit did, in fact come to Congress—twice—for statutory authorization to commit U.S. troops to combat in Afghanistan. Congress granted authorization on September 18, 2001. The “Authorization to Use Military Force,” (AUMF) passed by the Senate 98-0 and the House 420-1, authorized the President to use “all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided” the 9/11 attacks.
Two days after the air strikes in Afghanistan, President Bush sent a letter to congressional leaders on the military actions. He said he authorized the actions “pursuant to my constitutional authority to conduct U.S. foreign relations as Commander in Chief and Chief Executive.” The legal basis for his action consisted only of what he considered to be constitutional grants while ignoring AUMF, which had provided him with the specific statutory authority to use military action against those responsible for the 9/11 outrage. Bush referred to the AUMF, only for reporting purposes and, like Presidents before him, as a source of “support,” not authority. He stated: “I am providing this report as part of my efforts to keep the Congress informed, consistent with the War Powers Resolution and (AUMF). . . . I appreciate the continuing support of Congress. . . .”
President Bush maintained his constitutional view about the scope of presidential power to authorize military force in explaining orders to carry out military strikes against Iraq when, on March 19, 2003, he notified Americans of his decision to deploy combat troops in retaliation for what he asserted was Iraq’s role in the 9/11 attacks. On March 21, he reported to Congress on the initiation of military operations. He grounded his actions on presidential power under the Constitution, not on statutory authority conferred by Congress in its enactment of the “Iraq Resolution” on October 10, 2002. In signing the resolution, President Bush said that “Congress has now authorize the use of force.” In a separate statement, however, he referred to the “resolution of support,” and said that the signing of the resolution did not “constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.” In March 2003, when he ordered troops into combat, he would cite as authority for his actions not the resolution but what he regarded as his independent constitutional powers.
Like his predecessors—Gerald Ford, Jimmy Carter, Ronald Reagan, George H. W. Bush, Bill Clinton and George W. Bush—President Barrack Obama asserted as constitutional authority to commence military hostilities his roles as Commander in Chief and Chief Executive, with little respect for the War Powers Act of 1973. President Obama’s assertions represented an about-face from the position he had articulated as a candidate for the Presidency. In his presidential campaign in 2007, Senator Obama was asked by Charlie Savage, then a reporter for the Boston Globe (now a reporter for the New York Times), under what circumstances a President would possess the constitutional authority to order strategic bombing of suspected nuclear sites in Iran without first receiving authorization from Congress. Obama stated: “ The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” He added that the President, as Commander in Chief, “does have a duty to protect and defend the United States” against actual or imminent threats. History, he said, has demonstrated that military action “is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.” As President, however, Obama betrayed his campaign statements when, in March 2011, he unilaterally ordered military actions against Libya, a nation that had neither attacked nor threatened the United States.
President Obama, it will be recalled, had inherited two wars when he assumed the Presidency, one in Afghanistan, and the other in Iraq. His military actions against Libya represented yet a third war. His initial claim of legal authority for the hostilities was grounded in purported authorization by the UN Security Council and NATO allies. Presidential invocation of legal authorization from international bodies will be discussed shortly, but it is clear from this assertion that President Obama had retreated from his campaign statements. On March 21, Obama notified Congress that two days earlier, at 3 p.m. EST, U.S. forces, “at my direction” commenced military operations in Libya to assist the UN action. He stated that the strikes “will be limited in their nature, duration, and scope.” By reporting to Congress, he complied with Section 4 of the War Powers Resolution, which requires the President to notify Congress within 48 hours when U.S. forces are introduced “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” President Obama, however, exceeded his projections. His estimate that military action would last “days, not weeks” fell short of the mark, as hostilities continued for seven months. Originally, the mission was designed to protect civilians; it became a policy goal: “Qaddafi needs to go.” As days passed, President Obama increased American military resources, including the deployment of Predator drones against Qaddafi forces, and engaged in collaborative efforts with Libyan rebels, to depose President Qaddafi. President Obama’s legal justifications for his exercise in unilateral executive war making soon became the subject of considerable scrutiny.
By early June 2011, American military involvement in Libya exceeded the 60-day clock of the WPR. Under the terms of the statute, Presidents who engage in military operations for up to 60days without congressional authorization must begin withdrawing troops and complete that process within the next 30 days. During the House of Representatives debate on June 3, 2011, it was stated: “The 60-day authorization deadline expired on May 20, and the 30-day withdrawal deadline expires on June 19.” Accordingly, the House passed a resolution, with strong bipartisan support, directing President Obama to submit a report to the House within 14 days describing U.S. national security interests in Libya, including the “President’s justification for not seeking authorization by Congress for the use of military force in Libya.”
In response to the House resolution, the Obama Administration submitted a 32-page report, which included a legal analysis defending the President’s unilateral action. It concluded that President Obama’s broad authority as Commander in Chief and Chief Executive, and his authority to conduct the foreign policy of the United States provided the legal authority he needed to “direct such limited military operations abroad.” Further, the President was not required to seek congressional authorization. Obama did not challenge the constitutionality of the War Powers Act. Instead, he contended that the “President is of the view that the current military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of ‘hostilities’ contemplated by the Resolution’s 60-day termination provision.” There was no war in Libya, according to the administration; nor, remarkably, were there any military hostilities. In addition, “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.”
The Obama Administration’s analysis was deficient in several ways. It ignored the context in which the WPR was debated and enacted: the decision by the Nixon Administration to conduct a massive bombing operation in Cambodia, which did not involve U.S. ground troops or substantial U.S. casualties. Moreover, nothing in the WPR waives the 90-day limit (including the 30-day period for troop withdrawals). The administration’s strained conception of “hostilities” would permit sustained bombing at 30,000 feet, the launch of Tomahawk missiles or the use of armed drones as long as there were no, or few, U.S. casualties. The administration’s claim that there were no hostilities in Libya was exposed by a newspaper story in June 2011, which reported the Defense Department’s decision to provide “imminent danger pay” to service members who flew planes over Libya or served on ships within 110 nautical miles of its shores. The criterion for authorizing danger pay was that troops were “subject to the threat of physical harm or imminent danger because of civil insurrection, civil war, terrorism or wartime conditions.” President Obama’s extended efforts to circumvent the WPR and his assertion that hostilities did not exist, were exposed by his own orders –deployment of armed drones, bombings and missile strikes—and his administration’s decision to grant danger pay.
The history of the War Powers Resolution reveals a basic pattern. Presidents from Gerald Ford through Barrack Obama have invoked the line of argument advanced by Richard Nixon when he vetoed the measure: the President, as Commander in Chief and Chief Executive, and pursuant to his duty and power to conduct American foreign relations, possesses the authority to initiate military hostilities. In filing reports “consistent with,” rather than “under” the War Powers Resolution, Presidents have maintained their position that they do not require congressional authorization prior to unleashing American military might. But Presidents, as they have said, do “appreciate” legislative support from Congress, although it is not necessary.