Wednesday, June 22, 2011

Is the fighting in Libya legal and constitutional if the House and Senate can't agree on any legislative response to it? (Answer: No)

The latest moves in Congress to address the fighting in Libya include possible legislation in the House to cut off funding (described in this article by Jennifer Steinhauer in the New York Times), and a resolution to be offered in the Senate -- by John Kerry and John McCain -- to authorize the fighting and subject it to limits. If passed, a funding cut-off would end the war unless President Obama found, and was prepared to use, some means of circumventing what may be Congress' most fundamental power, the power of the purse. The resolution proposed by Senators Kerry and McCain would thread the needle between President Obama's position that the War Powers Resolution does not apply and legislators' feeling that the war should not go on without congressional approval, by providing an authorization but one that does not treat what it authorizes as "hostilities" and that is not designated as a "specific statutory authorization" that would comply with the War Powers Resolution (WPR). (See the text of the proposed resolution, accompanying an article by Felicia Sonmez on this subject on a Washington Post blog.) The Times reports that the administration does support the Kerry-McCain resolution.

It seems quite possible at this point that the ultimate result will be that the two Houses of Congress cannot agree on any legislation at all. If the WPR is applicable to this conflict, it would follow that our troops must be withdrawn from the hostilities. The WPR does not prohibit fighting if Congress disapproves it; rather, the WPR prohibits fighting (once its 60-day clock has run) unless Congress affirmatively approves it by passing a particular kind of legislation, the "specific statutory authorization."

Should the President be deemed to have the power to fight until he's forbidden to do so? Even if one reads the Constitution to give the President that much power, the War Powers Resolution does tell the President exactly that: stop fighting after 60 days unless we (Congress) authorize you to continue. So to uphold Obama's right to keep fighting -- assuming the WPR does apply to these events -- would one have to say that the WPR is unconstitutional?

The only other possibility I can see would be an argument that the WPR, though constitutional, has to an extent been superseded by subsequent congressional action. How's that? The idea would be that although the WPR rightly reflects the constitutional principle that both political branches must approve of our fighting an extended military engagement, there are many ways that Congress might express its approval. (I support reading the constitution to embody this principle, but certainly its validity is subject to debate; that, however, will have to be a topic for another day.) The WPR requires a "specific statutory authorization," but a subsequent Congress could choose to express its approval in some other way. One Congress can't, in general, tell a subsequent Congress how to meet its constitutional obligations. So perhaps Congress has in some other way given its approval, and also manifested its decision that it can give this approval without using the WPR's specified method.

There is at least some force to this argument. When Congress failed to enact a specific statutory authorization for the Yugoslavia bombing campaign, but did adopt a spending bill providing funding for that campaign, arguably its funding bill also constituted its expression of approval. Otherwise, if the constitution does require affirmative approval from Congress and if its funding bill wasn't that approval, then the funding bill financed an unapproved, hence unconstitutional, war -- and so it would seem that the funding bill was itself unconstitutional. Since there is a general presumption that Congress' statutes are constitutional, one should try to avoid an interpretation of its acts that renders them unconstitutional. So it might be argued that the spending bill passed for Yugoslavia silently, but by implication, repealed the WPR requirement of a "specific statutory authorization" for that war, a requirement that would have mandated that "any provision of law . . . including any provision in any appropriation Act" must in fact "specifically authorize[] the introduction of United States Armed Forces into hostilities . . . and stat[e] that it it is intended to constitute specific statutory authorization within the meaning of" the WPR. (Section 8(a)(1).)

Though all this might be right, it does not much help President Obama. Here there's been no spending law passed, nor any other affirmative expression of Congressional approval. So even if the "specific statutory authorization" requirement can be impliedly repealed for particular wars -- indeed, even if over the 40 years since the enactment of the WPR this requirement has somehow been impliedly repealed altogether (unlikely, since implied repeals are not favored when courts are asked to discern them in legislation) -- there's no evident direct approval of this war by any method.

Perhaps the only remaining possibility would be to discern such approval in actions Congress has taken that don't directly bear on the war. Congress has no doubt expressed its disapproval of human rights abuses, and Qadhafi surely was guilty of many of them. The UN Charter and the NATO Charter protect our security, and have been endorsed over and over through legislative action, and this fighting is authorized by NATO and by Resolution 1973 of the UN Security Council (though the scope of the Security Council's authorization has arguably been interpreted aggressively by the United States and NATO).

All this could be said -- but it all seems to miss the point. Grand principles and commitments may lead to war, but a decision must still be made to fight. I think that we are engaged in hostilities; the latest details to emerge, reported by Charlie Savage & Thom Shanker in the New York Times here, are that "[s]ince the United States handed control of the air war in Libya to NATO in early April, American warplanes have struck at Libyan air defenses about 60 times, and remotely operated drones have fired missiles at Libyan forces about 30 times, according to military officials." That's hardly constant bombardment, but it is persistent -- seemingly more than once a day on average. To share in making the decision to engage in such military action, I think Congress needs to actually focus on and decide it. Moreover, it's likely not enough that members of Congress support the decision in their private thoughts or in their speeches; they need to vote on it, up or down. That hasn't happened, and without it the fighting in Libya remains, I think, in violation of the WPR and the Constitution.

Saturday, June 18, 2011

The War Powers Resolution and Libya, Part III -- what exactly is our role in the fighting?

The Administration's June 15, 2011 report to Congress is a detailed account of our engagement in the fighting in Libya. It does demonstrate that our involvement is restricted. In particular, it explains Secretary of State Clinton's recent statement that we were still responsible for 25 % of all sorties. I said in a post two days ago that the new report, as described in the New York Times, seemed to describe a less extensive level of activity. But I now understand that there was no inconsistency. Here's what the report says (at 8):

"Three-quarters of the over 10,000 sorties flown in Libya have now been by non-U.S. coalition partners, a share that has increased over time." That's the same figure Secretary Clinton referred to (since it leaves 25 % of sorties as flown by the U.S.). Moreover, the report's explanation indicates that the percentage of sorties flown by the U.S. currently must be less than 25 %, since the non-U.S. share has risen over time to the 75 % level.

Also important, in terms of measuring our involvement in combat, is this observation (at 9): "The overwhelming majority of strike sorties are now being flown by our European allies while American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets, all within the UN authorization, in order to minimize collateral damage in urban areas."

Our sorties, then, are primarily not "strike sorties." Presumably they are flights carrying out surveillance and refueling missions, both of which the report emphasizes the dominant US role in providing (9).

But it is worth noticing that we do still have a part in the fighting as well as its support. Apparently this takes three forms:

(1) "[O]ccasional strikes by unmanned Predator UAVs against a specific set of targets"

(2) "[S]uppression of enemy air defense": It's notable that the report does not refer to strikes for this purpose as "occasional." Nor does it say they are carried out by Predator drones. Apparently, then, our planes and pilots are carrying out some considerable number of strikes aimed at suppressing enemy air defense, presumably by bombing and or firing upon those air defense facilities.

(3) Rescue operations: Although the Administration, as a recent New York Times report notes, has "emphasized that there are no troops on the ground," rescue operations are a possible exception to this proposition. The Administration's June 15, 2011 report offers this observation (at 11): "As President Obama has clearly stated, our contributions do not include deploying U.S. military ground forces into Libya, with the exception of personnel recovery operations as may be necessary." The report does not spell out whether or how often we have actually had ground forces in Libya for this purpose, but this sentence leaves the impression that such operations have taken place.

Literally, these operations constitute an "introduction" of troops into Libya, and presumably there is a real possibility of hostilities -- fighting -- in such moments. One might say, therefore, that these operations are a particularly likely trigger of War Powers Resolution requirements. But it might be said in response that these moments are too fleeting to count as a sustained introduction of troops into hostilities or imminent hostilities. It's our other operations that are sustained, presumably daily interventions -- mostly not in shooting, but certainly in guiding (by surveillance) and enabling (by refueling) the shooting done by our allies in NATO.

If we were only shipping munitions to our NATO allies, I think the law of war would not treat us as a party to the conflict, nor view our soldiers as combatants. But our involvement is much deeper than that. We are very much part of the fighting, though we evidently fire weapons ourselves relatively little. The Libyans lack the means with which to shoot at our planes -- but surely, if they could, they would be acting within the law of war to fire on our planes as they engaged in surveillance or aerial refueling of NATO bombers. To be clear, I'm not suggesting in any way that Qadhafi's cause is just. But the law of war that regulates how wars are carried out permits both sides to fight, even if one side had no right to go to war. In general it is no crime for a uniformed soldier who is fighting for an unjust cause to shoot at enemy soldiers whose cause is just.

The reality that our forces are acting as combatants strikes me as another indicator (in addition to those I discussed in my earlier post) that the War Powers Resolution's requirement of Congressional approval is now in play. Broadly speaking, we should want -- and we should understand the Constitution and the War Powers Resolution to require -- Congress to state its approval for our nation taking actions that under international law would permit our forces to be fired upon. Even if our forces are so superior that their actions are truly risk-free (a very unlikely hypothetical), when we cross the line international law draws between peace and hostilities, we ought to decide as a nation that we mean to.

Friday, June 17, 2011

On the release of 46,000 convicted felons from California's prisons

To my surprise, the Supreme Court last month upheld, in Brown v. Plata, a lower-court order directing California to reduce its prison population within two years by approximately one-third, some 46,000 people -- all of them, as justice Scalia notes in his fierce dissent, "convicted felons."

Basically, this is good.

But saying why and to what degree it's good is a more complex matter than I'd expected. So I will discuss it in a number of posts, as I work out my own thinking about it.

I'll begin, here, with why it's good. One answer could be that California imprisons too many people. I think it is true that criminal sentencing in the US is harsh compared to many other nations, and also true that our heavy use of imprisonment has fallen most severely on minority communities, with very painful results. But the issue of sentencing policy is not an entirely simple. Chief Justice Roberts in his dissent quotes a scholar saying that "'[t]here is a general consensus that the decline in crime is, at least in part, due to more and longer prison sentences.'" Even more to the point, the case wasn't decided on the ground that sentencing policies were or were not unconstitutional -- so if the case benefits us by reducing incarceration, that's a collateral effect rather than a legal ground for the decision.

Rather, the reason the decision is good is that, whatever sentencing policies we choose to have, we have to be prepared to pay the price for them. If we want to lock lots of people up, then we have to deliver constitutionally adequate health care and mental health care -- the issues in this case -- to all those people. If we want to do that, we have to pay for it. No legislature in a time of budget shortages will readily make prisons a priority -- and California's budget troubles have been acute. Perhaps only the Constitution, and courts' enforcement of it, have a chance of doing that.

I think that's the central reason for the Supreme Court's decision. Justice Kennedy, as so often the swing vote and here the author of the majority opinion, is no radical. Nor does he appear comfortable with the two-year timeline for the prison population cuts set by the lower court -- he upholds it but suggests, at some length, that California might seek, and the lower court might grant, various modifications, including an extension to 5 years. (It's worth adding that even in its original form, the lower court's order did not actually specify that prisoners had to be released. What it did was to require that California reduce its prison population to no more than 137.5% of design capacity -- something the state in theory could accomplish in various ways, including by transferring prisoners to other facilities or by building new facilities. But as Justice Kennedy put it, perhaps understating the point, "[t]he population reduction potentially required is nevertheless of unprecedented sweep and extent.")

But, he writes, "[a] prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society." The Constitution, this case teaches, simply won't permit violations of its guarantees so persistent as to suggest they will never be honored. Faced with that prospect, Justice Kennedy -- and a majority of our quite conservative Supreme Court -- made clear that California did not have the option to disobey the Constitution.

That's good.

Wednesday, June 15, 2011

Libya and the War Powers Resolution -- Part II

Today, June 15, 2011, President Obama has issued at last his explanation of why he believes he can continue our involvement in the fighting in Libya despite the fact that there has been no Congressional enactment of the "specific statutory authorization" seemingly required by the War Powers Resolution (WPR). Presumably this announcement means that the White House has given up on the strategy of actually seeking congressional approval; in theory, given this position, the White House should now feel that efforts by sympathetic legislators to proceed under the WPR are actually based on a legal mistake.

The fact that this explanation emerged so late -- 88 days after our involvement in Libya began -- and only after the House of Representatives had demanded an explanation in itself casts doubt on the explanation's persuasiveness. If it was that good an argument, why didn't it get made earlier? The White House's unwillingness to say whether the Office of Legal Counsel -- the elite Department of Justice unit with a tradition of nonpartisan independence (a tradition tarnished during the Bush years) -- agreed with its theory also raises doubt. (These features are reported in Charlie Savage & Mark Landler, "War Powers Act Does Not Apply to Libya, Obama Argues," N.Y. Times, June 15, 2011. I'm also relying here on Savage & Landler's account of the arguments made in the 32 unclassified pages of Obama's report to the Speaker of the House of Representatives. I may have more to say once I've read the report!)

Nevertheless, Obama's argument could be right. His position is that the particular role we now have doesn't amount to involvement in hostilities. What is that role? Notably, it does not involve ground troops at all. Also notably, it exposes our forces to little or no risk of being fired on -- the Libyans haven't got the guns, and we keep our distance. What we are doing, as Savage & Landler summarize the Administration's presentation, is providing surveillance and refueling for other NATO states' planes, and using unmanned drones to fire on Libyan targets. (Interestingly, this level of activity seems less than what Secretary of State Clinton had described, in a remark I cited in my previous post on this issue.) In making this argument, as Savage & Landler also note, Obama joins other administrations which have also tried to read narrowly the War Powers Resolution's focus on the introduction of US forces into hostilities (though not on these particular grounds). In doing so he can find important interpretive leverage in the fact that the WPR never defines the relevant term "hostilities" or, for that matter, "introduction" (as in the "introduction of US forces into hostilities"). And it is important to recognize that Obama has not disputed the War Powers Resolution's constitutionality, only its applicability.

Still, this argument should not be accepted. The fact that the Libyans can't strike at us doesn't mean that we aren't killing them, and doesn't mean we aren't incurring the high economic costs of war and the many political entanglements it risks. Nor is it possible, in an age of terrorism, really to be certain that we won't be attacked in turn, either by the Libyans (the authors of the Lockerbie bombing) or by others who make, or pretend to make, the Libyan cause their own.

But perhaps the clearest refutation of this position comes from applying its logic. If we're not engaged in hostilities now, apparently we could continue this conduct indefinitely and still not be engaged in hostilities. We might also be able to increase the scale of our involvement by some considerable margin, still without crossing the hazy line around the zone of "hostilities." All this unless Congress musters a veto-proof and interpretation-proof statutory prohibition (or the President runs out of money that he can tap from the notably flexible Pentagon budget).

Why should the President have such an authority? We are far past a short-term emergency, far past a quick and "surgical" strike, and quite a ways removed from any direct threat against the United States that provided a reason for war resting in immediate national self-interest. It seems to me that if we take seriously the idea that both elected branches of our government must concur in decisions on war, that principle requires congressional concurrence now. I would read the War Powers Resolution as saying exactly that.

I would support Congress issuing that concurrence. I fear that if given the chance Congress won't do so, and that much of the reason will be partisan politics. But that's what a democracy is: a country where the people, with all their wisdom and unwisdom, rule.

Friday, June 10, 2011

Ashcroft v. al-Kidd and the use and abuse of the "material witness" statute

On May 31, 2011 the Supreme Court decided, in the case of Ashcroft v. al-Kidd, that the government's subjective intent in detaining someone under a material witness statute makes no difference to the constitutionality of its actions. As the Court explains (majority opinion at 1), material witness warrants are authorized by federal statute, 18 U.S.C. § 3144, “to 'order the arrest of [a] person' whose testimony 'is material in a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena.'” Al-Kidd alleged, and the Court accepted for purposes of argument:

that, in the aftermath of the September 11th terrorist attacks, then-Attorney General John Ashcroft authorized federal prosecutors and law enforcement officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations. It is alleged that federal officials had no intention of calling most of these individuals as witnesses, and that they were detained, at Ashcroft’s direction, beause federal officials suspected them of supporting terrorism but lacked sufficient evidence to charge them with a crime.

(Majority opinion at 1-2.) The Court's decision is that if the warrant is objectively well-founded, it makes no constitutional difference under the Fourth Amendment (which regulates searches and seizures) that in fact the warrant was obtained in order to detain someone whom the government had no intention of calling as a witness.

This was not the central issue in the case before the Court. The central issue, rather, was whether Attorney General Ashcroft was entitled to qualified immunity for having instituted a policy of acting in this way. On this point, the eight justices sitting (Justice Kagan recused herself) were unanimous: since it had not been "clearly established" prior to Ashcroft's acts that such a practice was unconstitutional, he could not be sued for it even if it was ultimately found to be a breach of the constitution.

As to the question of whether the warrant actually was unconstitutional, the Court hedged. The majority did not say the warrant was constitutional. In fact, the majority didn't even clearly decide that the material witness statute was constitutional, if used purely and precisely as it presumably was meant to be, as a tool to detain needed witnesses who otherwise would flee. (See the separate opinion by Justice Kennedy, at 1-2; Kennedy joins the majority opinion but carefully delimits what it says.) Incidentally, the reason there could be a question about the constitutionality of the material witness statute, no matter how strictly applied, is that the material witnesses are not themselves suspected of any crime – they’re being held only to make sure they’re available to testify. But that issue, again, isn’t one the justices rule on.

Instead, what the 5 justices in the majority decided was only this: that if the warrant was objectively well-founded under the statute, then the fact (that is, the alleged fact) that the government's true purpose -- its "subjective intent" -- in getting the warrant was to investigate al-Kidd himself rather than to hold him as a witness didn't make the warrant unconstitutional.

The question of the relevance of subjective intent to the constitutionality of searches and seizures has been much discussed, and isn't my principal focus here. What strikes me most about the court's decision on this point is not the ultimate answer (though I'll have more to say about this below) but the question.

What does it mean to say that the material witness warrant was objectively well-founded even though the subjective intent was improper? To be objectively well-founded, the warrant had to be based on sufficient reason to believe that al-Kidd's testimony was material to a criminal case. But if the government had no intention of using that testimony, in what sense could it have been material?

"Material" means, roughly, "relevant and of probative value." So the question the Court posed was whether it was constitutional for the government to detain someone whose evidence (a) was relevant and of probative value, when (b) the government had no intention of using it. It's possible to imagine such cases, but not easy to see how they could have been part of the post-9/11 use of the material witness statute as described in al-Kidd’s allegations.

For example, the government might know that Mr. X had material information, but not want to use it because the criminal prosecution could be carried out based on other people's evidence. But this hypothetical suggests that the government already has a pretty good idea of what Mr. X knows, and already has a pretty good sense of the costs and benefits of using Mr. X's testimony as compared to relying on other evidence. That, however, is hard to square with the opening assumption about why the government was using the material witness statute in these cases -- to investigate people whom it did not yet have sufficient evidence against to justify an arrest and prosecution.

So it seems unlikely that the case the Court decides -- an otherwise valid material witness warrant accompanied by a subjective intent only to investigate the detainee himself -- ever actually arose in the post-9/11 days. Certainly it was not demonstrably Mr. al-Kidd's case; he alleges, as Justice Ginsburg details (Ginsburg opinion at 1-2), that his warrant was obtained by material misrepresentations in the affidavit the government submitted to the magistrate who issued the warrant. In the Supreme Court, according to the majority (majority opinion at 3-4 & 8 n.3), Mr. al-Kidd's counsel argued the case as if it was indeed an instance of the objectively valid, subjectively flawed warrant -- but that seems to have been a framing of an issue for decision, not a concession or representation that the facts were on these lines (see Justice Ginsburg’s opinion, concurring in the outcome of the case but not its rationale, at 1 n.1). (Adam Liptak reports on Mr. al-Kidd's account of what happened to him here. Al-Kidd also charged that he was held in degrading conditions during the 16 days he spent as a material witness; these charges have been settled (see opinion of Justice Ginsburg at 4-5).)

Justice Scalia, writing for the Court, asserts (majority opinion at 3) that the Court had the discretion to address this issue, since the court below had ruled on it, and that is no doubt correct. Nevertheless, the Court here seems to have decided an issue that is not only abstract but also hypothetical. That brings the Court very close to a realm it has tried to avoid for 200 years -- the decision of mere debates rather than of actual cases or controversies (as the constitution characterizes the subject-matter of courts' work). For different but related reasons, Justice Sotomayor refers in her separate opinion, also concurring in the outcome of the case but not its rationale, to the “artificiality of the way the Fourth Amendment question has been presented to this Court,” and regrets the Court’s “unnecessary holding on the constitutional question.” (Sotomayor opinion at 2.) I agree.

But there’s one more thing to add. It is no doubt true, as Justice Scalia emphasizes (majority opinion at 3-9), that most of our Fourth Amendment case law tests the validity of searches and seizures only by whether they were objectively justified, with no regard to their subjective motivation. But the apparent unlikelihood that objectively valid, subjectively pretextual material witness warrants actually were obtained as part of the reaction to 9/11 suggests that in the real world the cases that will actually arise are more likely to be cases of warrants that pretend to be objectively valid but actually are both pretextual and invalid – cases, to be precise, of people whom the government certainly wants to detain for investigation, but who are neither chargeable with any offense nor actually needed for anyone else’s trial.

To affirm the constitutionality of the hypothetical warrant that somehow is objectively valid though subjectively pretextual risks inviting the government to fit its truly invalid as well as pretextual detentions under this saving mantle. That, I believe, is a mistake. The fact that, as Justice Sotomayor emphasizes (Sotomayor opinion at 1), the result is a possibly “prolonged detention of an individual without probable cause to believe he has committed any criminal offense,” a situation the Court hasn’t considered in its other objective-validity cases, compounds the error.

Wednesday, June 8, 2011

Two months later, is the war in Libya still constitutional?

Does it matter that congress hasn't approved our involvement in fighting in Libya? Yes, very much.

Back when this intervention began, when President Obama scarcely nodded in Congress' direction, I argued that it was now a fact of U.S. constitutional law that presidents can undertake small-scale military actions on their own initiative.

But starting them is one thing, continuing them is another. Not just as a matter of general principles of good governance, but because the War Powers Resolution (WPR), enacted by Congress over President Nixon's veto in 1973, says so. It specifies that if the President intrroduces our forces "into hostilities," and if Congress does not enact a "specific statutory authorization" for this engagement within 60 days of a mandatory report by the President to Congess about the engagement (a report due within 48 hours after the introduction of our forces) -- then the troops must be withdrawn, though the President can obtain an extension of up to 30 days to do so.

There doesn't seem to be any good ground for denying that the War Powers Resolution's requirements apply to our engagement in Libya. Though we passed leading responsibility over to NATO, we are an integral part of NATO. A US general is its "Supreme Allied Commander, Europe." As Bruce Ackerman and Oona Hathaway recently pointed out, "Secretary of State Hillary Clinton recently admitted that 'the United States continues to fly 25 percent of all sorties. We continue to provide the majority of intelligence, surveillance, and reconnaissance assets. We continue to support all of our allies in their efforts.'"

It is true that we do not have ground troops in Libya -- or at least have not acknowledged having any there. (CIA agents are another matter, but the War Powers Resolution doesn't regulate their use since it applies only to the introduction of "United States Armed Forces" into hostile situations.) But if, for instance, we fire a missile from a ship in international waters to hit a target on the land of another nation, we are fighting -- and we ought not to parse the WPR's provisions about introduction of United States forces into hostilities to try to avoid this reality. All the more so if our surveillance planes and bombers, to say nothing of our attack helicopters, are in Libyan airspace. To deny this would be not only to deny stubborn fact, but also to undermine the purpose of the WPR (not to mention of the Constitution’s allocation of war powers) – namely, to keep the country out of war unless we really do, collectively, want to incur its perils.

This is a curable situation -- Congress can, if it so chooses, approve the engagement, and can also impose limits on the engagement. President Obama could veto such a constrained authorization, but only at the cost of potentially not receiving the "specific statutory authorization" that the War Powers Resolution requires. More likely, the White House and Congress would negotiate the terms of legislation both could live with. The approval statute, of course, would be a bit late, but Congress can choose to regard that problem as academic. The result wouldn't be entirely neat, but it would acknowledge the continued relevance of the WPR's limits, much as the lengthy dispute over President Reagan's introduction of troops into Lebanon, ultimately ratified and placed under limits by Congress in 1983, did. (For a concise recounting of the Lebanon story, see Stephen Dycus et al., National Security Law 323-25 (3rd ed. 2002).)

It's striking, to say the least, that President Obama has fought on in Libya past the 60 day limit. (As of today, June 8, 2011, he is 19 days beyond the 60 days + 2 days for report filing that began to run when our engagement in Libya began on March 18.) President George W. Bush obtained congressional authorization for our attack on Al Qaeda and the Taliban, and then got a separate authorization for our war in Iraq. His father received congressional authorization for the first Gulf War. The elder President Bush had to be pushed by a court decision to seek congessional approval, but that may reflect an important political point: with Republicans at least somewhat constrained by their frequent advocacy of strong executive powers, and Democrats at least somewhat reluctant to criticize a Democratic President, Democratic presidents may be better positioned to violate the War Powers Resolution than Republican presidents are. That might help explain why the most unambiguous violation of the WPR's time limits was by another Democrat, President Clinton, in connection with the NATO bombing campaign against Yugoslavia in defense of Kosovars of Albania descent in 1999.

Of course, there's another very significant difference between the unauthorized wars and the authorized ones, besides the political party of the Presidents responsible. This difference is the size and nature of the engagement. Our two wars with Iraq and our ongoing war in Afghanistan have been large-scale, full-throttle miltary engaements; the bombing campaign in Yugoslavia, and the air war in Libya, are more circumscribed. But not so circumscribed, it seems to me, as to fall below the level of "hostilities."

Perhaps the most important difference is a completely pragmatic one: it looked, at the time we intervened in Libya, as if we might be in and out of there within the 60-day period. President Clinton may have had similar hopes when he began the bombing in Yugoslavia. In fact, the Yugoslav government accepted defeat around day 77 of the bombing – and so Clinton, who never sought Congressional authorization, was ultimately not guilty of more than about two weeks of violating the WPR.

Will Congress pass such a statute? Maybe not, both because Congress is locked in partisan rancor and because the Libyan war isn't going all that well. If Congress doesn't pass it, the next question will be whether Congress does anything else at the same time. If Congress approves new funding legislation specifically for this campaign, that by itself might count as authorization – even though section 8(a)(1) of the WPR said forty years ago that it wouldn’t. On the other hand, if Congress passes legislation calling for the withdrawal of the troops, that will definitively show that Obama is acting without Congressional authorization. In fact it would show this lack of authorization even if Obama successfully vetoed the legislation, since the point would remain that a majority (though not a two-thirds majority) of members of Congress affirmatively disapproved of his intervention.

But what if Congress refuses to pass that sort of affirmative legislation? At that point, President Obama may want to argue that he is not exceeding his authority, since Congress hasn’t said he is. Something like this actually happened to President Clinton: on a single day, April 28, 1999, the House of Representatives defeated (by a tie vote) a concurrent resolution approving the bombing campaign, defeated legislation declaring war on Yugoslavia, and defeated legislation cutting off US troops' involvement in the campaign. (Dycus et al., supra, provide the details, and other information on these events that I've relied on, at 191 & 409-13. It's worth noting, as Ackerman & Hathaway point out, that Congress did subsequently -- and before the 60-day clock had expired -- approve special funding to support the costs of the Yugoslav campaign.)

I don’t think the Congressional paralysis displayed on April 28, 1999 should count as approval, and I maintain that President Obama needs Congress’ affirmative approval, not just its failure to disapprove, in order to continue the fighting. But Congressional ambivalence in action might remove enough of the sting to make it easier for Obama to press on with the war, in the hopes that he too can bring a bombing campaign to a conclusion quickly, as President Clinton did before him.