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Obama Meets with National War Powers Commission Members

The New York Times reports:

In between interviewing cabinet nominees and announcing health care plans, Mr. Obama met Thursday with the leaders of a commission that has proposed revamping the legal process for launching military action, to require more consultation between a president and Congress.

The proposal would scrap the problematic War Powers Act of 1973, a measure passed in the hangover from Vietnam to give Congress more say in committing troops to the battlefield but largely honored in the breach ever since by presidents who deemed it unconstitutional. In its place, the commission proposes a law requiring a president to consult lawmakers before any “significant military action” and calling on Congress to vote up or down within 30 days.

The decision to explore the idea could offer the first glimpse into how Mr. Obama will handle the broader issue of executive power following the expansive assertions by President Bush and Vice President Cheney over the last eight years. During the campaign, Mr. Obama decried what he deemed overreach by the outgoing administration, but such issues can look different to a new president once he enters the Oval Office and finds himself seeking as much latitude as possible to advance his agenda.

The commission, composed of luminaries from both parties, unveiled its plan in July, but it was largely overlooked in the heat of the presidential campaign. Although Mr. Obama has not endorsed the proposal, he could be breathing life into it by meeting with the commission’s chairmen and giving them a high-profile platform to make their case.

Sitting down with Mr. Obama in Chicago were two former secretaries of state, James A. Baker III, a Republican, and Warren Christopher, a Democrat. (Mr. Baker and Mr. Christopher actually once waged political war against each other, leading the legal teams for George W. Bush and Al Gore during the recount following the 2000 election.)

Other members of the commission, assembled by the Miller Center of Public Affairs at the University of Virginia, include former Senator Slade Gorton, a Republican from Washington, former Representative Lee H. Hamilton, a Democrat from Indiana, Brent Scowcroft, a former national security adviser and Abner J. Mikva, a former White House counsel.

In announcing the meeting, Mr. Obama’s office said that it was “being held at the request of the commission members,” so it is possible that the president-elect is merely being polite to some of the country’s most respected elder statesmen. Mr. Mikva, who was also a congressman and federal judge from Chicago, has been a mentor to Mr. Obama.

But some key people on the Obama team have shown interest in the matter. John D. Podesta, the co-chairman of Mr. Obama’s transition team, testified before the commission. And Vice President-elect Joseph R. Biden Jr., a longtime senator, in the past has proposed revisiting the War Powers Act.

Interesting. As noted in a previous post, while there are some good aspects to the Commission’s proposal, I have a number of concerns. In July, when the report was issued, I explained:

The logic of the Commission’s approach seems sound. Rather than attempting to draw a bright line between the war powers of Congress and those of the President– which the War Powers Resolution sought to do– the War Powers Consultation Act (WPCA) seeks to bracket the ultimate Consitutional questions and establish a framework for political consulation between the Executive and Legislative Branches that hopes to facilitate cooperation and avoid conflict.  To this end, the WPCA begins with this provision in Section 2:

The purpose of this Act is to describe a constructive and practical way in which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in significant armed confl ict. This Act is not meant to define, circumscribe, or enhance the constitutional war powers of either the Executive or Legislative Branches of government, and neither branch by supporting or complying with this Act shall in any way limit or prejudice its right or ability to assert its constitutional war powers or its right or ability to question or challenge the constitutional war powers of the other branch.

The WPCA then goes on in Section 3 to establish a “Joint Congressional Consultation Commitee,” consisting of these 20 individuals:

(i) The Speaker of the U.S. House of Representatives and the Majority Leader
of the Senate;
(ii) The Minority Leaders of the House of Representatives and the Senate;
(iii) The Chairman and Ranking Minority Members of each of the following
Committees of the House of Representatives:

(a) The Committee on Foreign Affairs,
(b) The Committee on Armed Services,
(c) The Permanent Select Committee on Intelligence, and
(d) The Committee on Appropriations.

(iv) The Chairman and Ranking Minority Members of each of the following
Committees of the Senate:

(a) The Committee on Foreign Relations,
(b) The Committee on Armed Services,
(c) The Select Committee on Intelligence, and
(d) The Committee on Appropriations.

Under Section 4, the President “shall” consult with this Committee ” [b]efore ordering the deployment of United States armed forces into significant armed conflict.“  The President is also required  “[b]efore ordering or approving any significant armed conflict” to “submit a classified report, in writing, to the Joint Congressional Consultation Committee setting forth the circumstances necessitating the significant armed conflict, the objectives, and the estimated scope and duration of the conflct.” If secrecy or “emergent circumstances” require, the President is allowed to consult and submit the report “within three calendar days after the beginning of the significant armed conflict.”

This all seems reasonable. But what, one might ask, is a “signifcant armed conflict” that would trigger the consultation and reporting requirement? Here the proposal takes an interesting turn. Section 3(A) provides:

For purposes of this Act, “significant armed conflict” means (i) any conflict expressly authorized by Congress, or (ii) any combat operation by U.S. armed forces lasting more than a week or expected by the President to last more than a week.

Interesting. On (i), it seems to make sense that if the conflict rises to the level of Congressional action, it is “significant.” On (ii), I am not sure what is sacred about a week– given that a military operation could kill thousands of people in much less than that. I guess it is likely is that any conflict that actually lasts less than a week probably falls below the radar screen.

But here is what is most interesting.  Section 3(B) defines what does not rise to the level of  “significant armed conflict.” It provides:

The term “significant armed conflict” shall not include any commitment of United States armed forces by the President for the following purposes: (i) actions taken by the President to repel attacks, or to prevent imminent attacks, on the United States, its territorial possessions, its embassies, its consulates, or its armed forces abroad; (ii) limited acts of reprisal against terrorists or states that sponsor terrorism; (iii) humanitarian missions in response to natural disasters; (iv) investigations or acts to prevent criminal activity abroad; (v) covert operations; (vi) training exercises; or (vii) missions to protect or rescue American citizens or military or diplomatic personnel abroad.

Now, in the context of this proposal, what this Section means is that the President is not required to consult with or report to the Committee on commitments of armed forces that fall into these categories.

Reflect for a moment on the significance of this provision. Even though there is the initial claim that the Act does not affect the Constitutional separation of powers, etc, this Section effectively recognizes that the President has the right to use force without Congressional consultation– let alone Congressional authorization– in items i-vii.  I find many of these items problematic from both a Constitutional law and an international law perspective. Let’s look at them one-by-one.

i. actions to prevent imminent attacks

This item would seem less troubling under both domestic and international law. It seems reasonable that the President needs to act quickly to respond to an imminent attack and that there would be no Constitutional impediments to doing so. Similarly, as the Caroline case acknowledged– and, I would argue,  customary law now supports– international law recognizes the right of anticipatory self-defense when faced with an imminent attack. BUT– if one looks at the Bush Administration’s National Security Strategy of 2002, that document clearly calls for the relaxation of the imminence requirement for anticipatory self-defense. So– even if the term imminent is used in this legislation, give the recent claims and practice of the President, I worry that the concept of imminence will be subject to abuse.

ii.  limited acts of reprisal

This is disturbing. Most international legal scholars would argue that the United Nations Charter made reprisals illegal under inernational law. Thus, why in the world would anyone what to draft legislation using a term that most scholars would regard as describing an illegal act? Even reprisal-like acts– the bombing of Libya in 1986 or the response to the embassy bombings in 1998 are always characterized as “self-defense.”  Perhaps, as I have argued elsewhere, reprisals are legal and thus the term is appropriate. But by putting it in legislation, the United States is making a claim about the law that might come back to haunt us as other states engage in their version of reprisals.  And that is just the international legal difficulties of the term.

iii. humanitarian missions in response to natural disasters

It is easy to be sympathetic to this category– especially in light of the recent cyclone in Myanmar.  But missions like this could go on for weeks and months. Should the President be seemingly given a blank check just because it is a humanitarian mission?

iv. investigations or acts to prevent criminal activity abroad

This would seem on the surface to be acceptable. But think what kinds of activites could be justified for purposes of preventing criminal activity abroad. In theory, the President could engage in an exented paramilitary operation against groups like the FARC. Should such activity take place without consultation?

v. covert operations

I agree with the proposal and would not regard covert operations as constituting “significant armed conflict.” And that is because we already have a well-established legislative framework for consultation and reporting of covert operations.

vi. training exercises

I would generally agree with the proposal here too.  But if forces of another state or non-state actor became engaged in armed conflict against US forces during a “training exercise,” there should be consultation and reporting.

vii. rescue missions

I think a true rescue mission is  lawful under international law and should be seen as permissible without Congressional consultation under US law. If, however, the mission is one like Grenada, where the rescue of nations is only one minor part of the mission, the President should not be able to use this category to escape Congressional scrutiny.

To summarize:

1. The basic idea under the proposed legislation– set up a framework for consultation, don’t make ultimate claims about the Constitutional lines between the President’s and Congress’s war powers– seems sound.

2. The definition of “significant armed conflict” leaves much to be desired. Again– I understand that this legislation does not say “the President has the Constitutional right to use force without Congressional authorization in areas that are not significant armed conflicts.” BUT– by signaling out those areas as ones where no consultation is required, it seems to me that Congress would open the door to claims that it is acquiescing in broad assertions of Presidential power.

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.