Advancing a Free Society

Problems with the Obama Administration’s War Powers Resolution Theory

Thursday, June 16, 2011

In this long post I analyze the Obama administration’s legal arguments for compliance with the War Powers Resolution.  A later post will consider the broader significance of the arguments.

Here is the administration’s formal explanation of its compliance with the WPR:

The President is of the view that the current U.S. 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.  U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo.  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.

Other important tidbits can be found in this Charlie Savage story.

I do not find the Administration’s arguments persuasive.

Continue reading Jack Goldsmith at Lawfare