Center for Arms Control and Non-Proliferation

Authorization for the Use of Military Force by a Schizophrenic House of Representatives

by Robert G. Gard [contact information]

This month, on 3 June, the House passed 268-145 a non-binding resolution, introduced by Speaker Boehner, rebuking President Obama for committing U.S. military forces to NATO operations in Libya without the express consent of Congress. It also directed the administration to provide detailed information on the objectives and cost of America’s role in the use of force authorized by the UN to protect the lives of civilians from retaliation by Libyan armed forces.

Boehner followed up immediately with a letter to the President admonishing him for failing to consult Congress on the commitment of U.S. forces to the operation in Libya, and asking whether the President failed to do so because he believes the War Powers Act is unconstitutional or whether he has determined that it does not apply to the Libyan case. Mr. Boehner apparently has discerned a metamorphosis in the 1973 War Powers Act since 1999, when he called it “constitutionally suspect.”

The War Powers Act directs consultation with Congress when the President introduces American armed forces into “hostilities” or circumstances in which “hostilities are imminent,” and requires the President to withdraw military forces if the Congress fails to authorize continuation within 60 days. Despite attacks by U.S. drone aircraft, the administration’s recent response to the House resolution and the Boehner letter is that the supportive role of American forces in the NATO campaign in Libya does not meet the criterion of “hostilities” in the War Powers Act since there is no commitment of ground troops, no sustained fighting or even exchanges of fire with U.S. troops.

Whatever the merits of the administration’s questionable position, this is but another chapter in the lengthy volume of constitutional disputes between the Executive and Legislative branches of our government that the Judicial branch perceives as political matters in which it is unwilling to intervene.

It is not surprising that Speaker Boehner is motivated to protect Congress’ prerogatives, particularly with a Democratic President in office.

It is therefore surprising that the Chairman of the House Armed Services Committee, Buck McKeon (R-CA), was able to persuade its members to pass a 2012 National Defense Authorization Act that includes delegation to the President of extensive authority to employ military force.

In addressing the so-called war on terrorism, the 2012 Defense Authorization bill states that “the current armed conflict includes nations, organizations, and persons who are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners,” or have done so in the past, and specifies that “the President has the authority to use all necessary and appropriate force during the current armed conflict” against those parties. Neither associated forces nor substantial support is defined.

This legislation would give the President extremely wide latitude into the indefinite future to make war without Congressional approval. Nor is there any stipulation that operations should be conducted for the purpose of preventing future acts of terrorism against the United States or its allies. It seems apparent that these provisions for the authorization for use of military force could be used to justify unlimited U.S. military action in Libya, contrary to the current objections in the House of Representatives that the President has exceeded his authority in committing the U.S. military even in a limited supportive role in the NATO operation.

Hopefully, the Senate has not included the open-ended authority for the President to conduct military operations in its Defense Authorization bill and will prevail in the reconciliation between the House and Senate versions. Senate Armed Services Committee Chairman Carl Levin (D-MI) opposes the House-passed provision.

At the same time, there are other provisions in the House bill limiting the Executive Branch’s legitimate authority relating to nuclear policies, restrictions on sharing missile defense information with Russia and directives on incarceration, interrogation and trial of detainees; none of these highly objectionable, even outlandish directives, should survive the legislative process.