On 15 June, a bipartisan group of ten members of Congress led by Rep. Dennis Kucinich (D) and Rep. Walter Jones (R) filed a federal lawsuit claiming that the administration will be in violation of the War Powers Act as of this Sunday.1 According to an article on the Washington Post, the administration sent a report to Congress which “says that ‘because U.S. military operations [in Libya] are distinct from the kind of ‘hostilities’ contemplated by the resolution’, the deadlines for congressional approval or force withdrawal do not apply”.2 Let’s look at the facts.
The US (along with France) began military operations in Libya on 19 March 2011.3 The War Powers Resolution is part of the US Code, specifically Title 50, Chapter 33. §1543 states
(a) Written report; time of submission; circumstances necessitating submission; information reported
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;
the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.4
Notice any of the conditions 1-3 can be satisfied in order to require the president to submit a report within 48 hours to Congress stating A-C. I’m not sure if he complied with this within the timeframe, but he did send a report within days under at least condition (2). The crux of this debate appears to boil down to an interpretation of §1544 (b), which states
(b) Termination of use of United States Armed Forces; exceptions; extension period
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543(a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress
(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
In particular it boils down to the first sentence; it’s an issue of whether the first sentence reads “within 60 days after report submitted OR required under 1543 (a)(1)” or “within 60 days after report submitted under 1543(a)(1) OR required under 1543(a)(1)”. The critics could argue that if we interpret it in the first sense, then Obama has submitted a report voluntarily (and in particular under 1543(a)(2)) and hence 1544(b) applies. The administration could argue that if we interpret the sentence under the second sense, then 1543(a)(1) was never a condition under which a report was filed, and hence 1544(b) does not apply. It’s like if we have the sentence “X or Y when Z”, then does that read “X or (Y when Z)” or “(X or Y) when Z”?
Also note, as I said I’m not sure when within the 48 hours after action on 19 March Obama submitted a note to Congress (if at all in that frame), but the 60 day rule applies as of that date of submission. Hence if he submitted at the end of that 48 hour window, there would be 62 days of allowed military action.
And the answer to the question is: that legislators need to be clearer.