Hostilities Evidence General

The Obama Administration argued that the War Powers Resolution didnt apply in Libya because US activity did not constitute hostilities Harvard Law Review, 2012
(RECENT ADMINISTRATIVE INTERPRETATION: Separation of Powers - War Powers Resolution - Obama Administration Argues that U.S. Military Action in Libya Does Not Constitute "Hostilities.", April, 125 Harv. L. Rev. 1546) The War Powers Resolution n1 ("WPR" or "Resolution") requires the President to obtain congressional authorization for the use of military force "in any case in which United States Armed Forces are introduced ... into hostilities." n2 If Congress has not declared war or otherwise authorized the deployment of U.S. forces within sixty days of the WPR's activation, the President must withdraw them from use. n3 While purporting to clarify the allocation of war powers, the Resolution has generated nearly four decades of dispute. n4 Recently, the Obama Administration denied the Resolution's applicability to U.S. support of an international military action in Libya that persisted for over sixty days. On June 28, 2011, Harold Koh, Legal Adviser of the Department of State, appeared before Congress to defend the Administration's continued use of U.S. forces. n5 Relying on previous administrations' interpretations of the WPR, Koh argued that U.S. activity in Libya did not constitute "hostilities" and thus did not trigger the WPR's sixty-day withdrawal rule. n6 Koh properly relied on historical
interpretations of the WPR, but his testimony illustrates the ambiguity that these precedents allow. While Koh construed the precedents narrowly, Congress's failure in this and other war powers disputes to contemporaneously oppose executive constructions of the WPR has invited increasingly narrow interpretations of it. This episode thus suggests limitations on the Resolution's ability to function as an ex ante time limit on executive action and further demonstrates the need for congressional participation in the Resolution's construction and application. [*1547] In February 2011, Libya erupted in a series of protests inspired by antigovernment uprisings in Egypt and Tunisia. n7 Violence steadily increased over the following weeks as then-Libyan leader Muammar Qadhafi struck back at the protesters, vowing to root them out "house by house, room by room ... [with] no mercy and no pity." n8 On March 17, aiming to avert what the international community feared would become a humanitarian catastrophe, the United Nations Security Council voted to authorize military action against Qadhafi's forces in Libya. n9 U.S. and European forces began a broad campaign of airstrikes against Libyan targets two days later. n10 The Obama Administration reported the activity to Congress within forty-eight hours of the coalition intervention. n11 While the United States took an early lead in disabling Libyan military targets, the North Atlantic Treaty Organization (NATO) assumed command in early April, and U.S. forces shifted into a "supporting role." n12 The Administration consulted with Congress throughout the operation, n13 but Congress did not authorize the use of military force. n14 As

the engagement continued into its sixtieth day, the legality of the Administration's activity in Libya catapulted into the public consciousness. n15 [*1548] On June 28, in
response to repeated congressional inquiries, Legal Adviser Koh appeared before the Senate Foreign Relations Committee to elaborate on and defend the Administration's position. n16 Koh's

testimony focused on the scope of the term "hostilities," n17 which he WPR's legislative history indicated that "there was no fixed view on exactly what the term "hostilities' would encompass" at the time the Resolution was adopted, n19 and no court or Congress had subsequently defined it. n20 Instead, the drafters of the WPR "declined to
argued "is an ambiguous term of art that is defined nowhere in the statute." n18 The give ["hostilities'] a more concrete meaning," n21 intending, Koh argued, "to leave the matter for subsequent executive practice." n22 In light of the drafters' deliberate vagueness, "the political branches have worked together to flesh out the law's meaning over time." n23 Koh then turned to the history of the WPR's application, beginning with the evacuation of U.S. citizens from Southeast Asia at the close of the Vietnam War, shortly after the Resolution's passage. n24 Citing a 1975 letter from the Departments of State and Defense to Congress, n25 Koh argued that the executive branch had always considered "hostilities" [*1549] "definable in a meaningful way only in the context of an actual set of facts." n26 Koh referred to a series of executive interpretations of the term that reaffirmed the 1975 letter, n27 claiming that "the term should not necessarily be read to include situations where the nature of the mission is limited[,] ... the exposure of U.S. forces is limited[,] ... and ... the risk of escalation is therefore limited." n28 Koh's argument then proceeded by analogy, comparing the U.S. intervention in Libya to, among others, past engagements in Lebanon, n29 Grenada, n30 and Somalia, n31 in which previous administrations had not found the WPR's sixty-day pullout rule to apply. n32 Koh hewed closely to the facts of these historical precedents and found the Libya intervention similarly limited in its mission, military means, exposure of U.S. forces, and risk of escalation. n33 Thus, while a different set of facts might have produced a different legal conclusion, the "unusual confluence" of variables in Libya n34 led the Administration to conclude that it did not "constitute the kind of "hostilities' envisioned by the [WPR]." n35 [*1550] Although Koh's definition of "hostilities" strains the term's everyday meaning, n36 the vehemence of commentators' responses belies the issue's complexity. Legislative

history n37 and four decades of the WPR's operation indicate that not every military engagement triggers the Resolution's sixty-day clock. As courts
have largely dismissed WPR litigation on prudential grounds, n38 historical practice has become law in the Resolution's regard, guiding its

application. n39 Koh properly sought to locate Libya amidst the universe of WPR precedents, n40 but his analysis illustrates the indeterminacy inherent in a statutory structure with only contested, historical practice to fill textual silence. This ambiguity has weakened the WPR's ability to function as a general, ex ante time limit on executive action. Page 2 125 Harv. L. Rev. 1546, *1546 Rather, Congress

must actively participate in enforcing the Resolution's letter if it wishes to deny the executive the flexibility on which Koh's argument relied.

Hostilities Covered Under UAV & Cyberwar

The Obama Administration argued that there were not hostilities because US troops were not in danger since they were using drones Congress must amend the WPR to apply to drones Grimmett, Specialist in International Security at the CRS, 2012
(Richard F., The War Powers Resolution: After Thirty-Eight Years, CRS Report for Congress, September 24, p. http://www.fas.org/sgp/crs/natsec/R42699.pdf)
Obama Administration submitted a 32-page unclassified report, together with a classified annex, that described U.S. actions in Libya to that date. On

page 25 of that unclassified report was a Legal Analysis consisting of one long paragraph summarizing the Administrations view of what the Presidents authority was to take the actions he had taken in Libya, and his rationale for not having to obtain congressional authorization to do so. This paragraph from the report states:
Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actions, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to

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 Resolutions 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
direct such limited military operations abroad. 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 these factors.
There are various legal arguments available to the Administration to justify use of UAVs for military action abroad against terrorist organizations and individuals. The following addresses the potential interplay of the War Powers Resolutions statutory requirements and the use of UAVs for military operations abroad. The

War Powers Resolution and Military Use of UAVs: Some Considerations In another situation, it is possible that the President might use the same basic formulation he and his legal advisors set out regarding the application of the War Powers Resolution to U.S. military actions in Libya discussed above. Directly put, if it is accepted that the Presidents use of UAVs for military attacks against terrorist targets abroad constitutes an action that is limited in scope and duration, and does not require introduction of U.S. military forces directly and physically into hostilities, then the War Powers Resolution, under this interpretation, does not apply to this presidential action, nor require congressional statutory authorization. The President, under this construction, has sufficient authority to act to defend the United States based only on his own
Constitutional authorities as Commander-in-Chief, as set out in the legal memorandum of the Office of Legal Counsel of April 1, 2011, and in the Presidents June 15, 2011, report to Congress. To date, based on public reports, instances of the use of UAVs to attack terrorist targets abroad have not required a time period in excess of 60 days to execute, nor have U.S. military personnel been placed directly into harms way or in places where hostilities that could directly involve them were indicated. The very nature of UAV technology permits their employment from locations remote from the places they are used to attack. Thus,

the argument could be made that in these circumstances, the War Powers Resolution, as currently drafted, does not require the President to obtain statutory congressional approval for the use of UAVs in military operations abroad. In his War
Powers Resolution report to Congress, on June 15, 2012, the President noted that he had authorized, during the previous six months, the U.S. military to work closely with the government of Yemen to operationally dismantle and ultimately eliminate the terrorist threat posed by alQaida in the Arabian Peninsula (AQAP), the most active and dangerous affiliate of al-Qaida today. The President added that: Our joint efforts have resulted in direct action against a limited number of AQAP operatives and senior leaders in that country who posed a terrorist threat to the United States and our interests.87 While the term direct action is not defined in the Presidents June 15, 2012, report quoted above, its context, coupled with public reporting on the U.S. use of UAVs to attack al-Qaida terrorist personnel in Yemen, strongly suggests that this is what the President is referring to in this report. The President further notes in this report that similar actions may be undertaken by the United States in the future. He stated: The United States is committed to thwarting the efforts of al-Qaida and its associated forces to carry out future acts of international terrorism, and we have continued to work with our CT [counter-terrorism] partners to disrupt and degrade the capabilities

of al-Qaida and its associated forces. As necessary, in response to the terrorist threat, I will direct additional measures against al-Qaida, the Taliban, and associated forces to protect U.S. citizens and interests. The June 15, 2012, report also stated that a classified annex to it would provide further information on such matters. That annex would perhaps elaborate on the specifics of the topics alluded to in the unclassified text, and clarify the express meaning of direct action, and, in particular, how it was employed by the United States. In light of the above

it appears that the existing statutory language of the War Powers Resolution, as interpreted by the Administration, does not require congressional authorization for the President to use UAVs in military operations against terrorists abroad, in Yemen or in other countries. It does appear that the
considerations, President may believe that in fulfilling his reporting obligations to Congress under the WPR he should at least implicitly note the use of UAVs in military attacks against terrorists when he submits his supplementary WPR report every six months. Perhaps the President also believes he should, in keeping with WPR reporting requirements, report more explicitly about such actions in classified reports every six months. Even though the President has not publicly reported the specific use of UAVs in military operations within 48 hours of their use, private consultations with the congressional leadership about their use may have occurred in individual cases. Should

Congress agree with what appears to be the Presidents position regarding his minimal obligations under the War Powers Resolution regarding the military use of UAVs, it need do nothing further. However, should Congress conclude that the War Powers Resolution should unambiguously require statutory congressional authorization of the military use of UAVs for counter-terrorism operations, then it would likely have to amend this statute , unless other mutually agreeable alternatives can be devised with the President.

Obamas definition of hostilities justifies UAV & Cyberwar without notifying Congress under the WPR Boston College Law Review, 2012
(Restoring Constitutional Balance: Accommodating the Evolution of War, November, 53 B.C. L. Rev 1767) On March 19, 2011, American forces began a campaign of air strikes against the Qaddafi regime in Libya using warplanes and missiles. n1 On March 21, the President of the United States sent written notification to the leaders of Congress
that "U.S. military forces . . . began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone." n2 On March 30, it was reported that the Central Intelligence Agency (CIA) had operatives working on the ground in Libya to gather intelligence for military airstrikes and to assess the rebel Libyan fighters. n3 The U.S. military was using spy planes and unmanned aerial vehicles (UAVs) to identify potential Libyan military [*1768] and government targets. n4 By May

12, UAVs were the only American

weapons being used to fire on ground targets in Libya. n5 Nonetheless, other American aircraft were supporting allied attack missions. n6 The President took this action without consulting Congress through the process prescribed by the War Powers Resolution of 1973 ("Resolution"). n7 The Resolution, which was passed in response to the Vietnam War, was a congressional attempt to check executive power and restore a balance of powers in the decision to enter a war. n8 Nonetheless, in response to congressional outcry against the President's unilateral action, the administration claimed that the War Powers Resolution was not applicable to the Libyan campaign. n9 The Office of Legal Counsel, a unit of the U.S. Department of Justice tasked with providing legal advice to the President, reasoned that the existence of "war" is satisfied "only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a significant period." n10 Thus, the military operations in Libya did not meet the administration's definition of "war." n11 According to the administration's reasoning, the President may unilaterally take the nation to war using limited
military means. n12 What the Obama administration characterized as a unique situation in Libya, however, is becoming more common due to advances in technology and the changing face of warfare. n13 The

use of UAVs and cyber-warfare could inflict serious damage on another country, with, from the American perspective, limited [*1769] means, no troop deployments, and possibly no involvement of military personnel. n14 According to the Obama administration, there are no "hostilities" under the terms of the Resolution so long as U.S. military casualties are minimal or nonexistent. n15

Other Hostilities Missiles

Includes off shore missiles Shane, Chair in Law at Ohio State University Law School, 2012
(Peter M., The Obama Administration and the Prospects for a Democratic Presidency in a Post-9/11 World, New York Law School Law Review, 2011 / 2012, 56 N.Y.L. Sch. L. Rev. 27) As America's global military strategy begins to rely ever more heavily on unmanned drones, off-shore missiles, and perhaps other remotely deployed weapons systems, there is reason to fear that the Libya episode could live on as a precedent very substantially undermining executive accountability to Congress for military action. As this essay goes to press, it appears as if the administration has simply squandered an obvious
opportunity to combine a humanitarian mission abroad with a compelling new narrative on the role of the presidency--a narrative based on rule of law, checks and balances, and genuine public accountability. This would have only required going to Congress. The narrative I am imagining might variously be called, "the Checks and Balances Presidency," "the Constitutionalist Presidency," "the Accountable Presidency," "the Rule of Law Presidency," or perhaps simply, "the Democratic Presidency." I like "democratic" the best because it captures the ideals of [*55] presidential accountability to law as embodied in our Constitution or as enacted by Congress through our democratic legislative process and of day-to-day presidential accountability to attend to the interests of all of the American people, not just an electoral base.

Other WPR Non-Military Actors

WPR only applies to military personnel not the CIA or civilians Boston College Law Review, 2012
(Restoring Constitutional Balance: Accommodating the Evolution of War, November, 53 B.C. L. Rev 1767) Furthermore, the War Powers Resolution is limited to U.S. Armed Forces, and does not apply to the CIA or other civilians at war. n322 This gap was acknowledged at the time the Resolution was drafted. n323 The CIA and civilian contractors have since become a larger part of American war fighting. n324 In fact, during the 2011 conflict in Libya, there were reports of CIA personnel on the ground. n325 Yet, since they were not military personnel, the Resolution did not apply. n326

Congress should broaden the WPR to all actors not just armed forces Boston College Law Review, 2012
(Restoring Constitutional Balance: Accommodating the Evolution of War, November, 53 B.C. L. Rev 1767) The scope of actors that fall within the War Powers Consultation proposal should be broadened. n344 The proposal currently is limited to "combat operation[s] by U.S. armed forces." n345 The legislation should be more expansive, and closer to the reality of modern war fighting, which is conducted by many actors in addition to the military. n346 This change could be accomplished by omitting the words "armed forces." n347 Therefore, the scope of the legislation should be modified to encompass "any combat operation by the United States." n348 This change to the proposed legislation would encompass military, government civilians, contractors, UAVs, and other technological innovations that act on behalf of the nation. n349

All actors and actions of modern warfare Boston College Law Review, 2012
(Restoring Constitutional Balance: Accommodating the Evolution of War, November, 53 B.C. L. Rev 1767)
The Constitution's system of checks and balances gave both the President and Congress powers over war. The War Powers Resolution of 1973 was an attempt by Congress to reassert its constitutional prerogative and implement a formal structure for the division of power with the President. Forty years later, modern

warfare has evolved sufficiently to render the War Powers Resolution ineffective. Thus, Congress should replace the War Powers Resolution with a new, more pragmatic [*1806] statute aligned with the realities of modern warfare. The new statute should incorporate elements of the proposed War Powers Consultation Act of 2009 and the existing Intelligence Oversight Act of 1991. Moreover, its scope should be expansive, to encompass all actors and all actions of modern warfare. Such an approach will ensure real checks and balances and political accountability in the realm of war powers.