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Grappling with the Meaning of “Hostilities”

By: Svetlana Matt on July 4, 2011

Enacted in 1973, the War Powers Resolution (WPR) requires the President to submit a report to Congress within 48 hours of introducing U.S. forces into hostilities or into situations where involvement in hostilities is imminent. The President must terminate the use of such forces within 60 days (or 90 days for military necessity) unless Congress extends this deadline, declares war, or enacts a specific authorization for the use of force. The statute, however, does not define what constitutes “hostilities.” The lack of a definition is at the center of the controversy as to whether the WPR applies in various circumstances, including the current U.S. military operations in Libya.

The U.S. operations are a response to the violent acts committed by Gaddafi’s security forces following the civilian revolt against the Gaddafi regime in February. Both the U.S. and the United Nations Security Council initially responded by imposing economic sanctions against Libya (see Executive Order 13566 and Resolution 1970, respectively). On March 17, in light of escalating violence, the UN Security Council passed Resolution 1973, which demanded an immediate ceasefire in Libya and authorized the use of all necessary measures to protect civilians. In accordance with this resolution and his constitutional authority to conduct foreign relations and carry out duties as Commander in Chief and Chief Executive, President Obama on March 19 directed U.S. military forces to commence operations in Libya – an effort undertaken with the support of NATO allies. Currently, the U.S. provides intelligence, surveillance, reconnaissance, ammunition and bombs, as well as targeting and planning for NATO’s campaign against Libya. While the U.S. uses drones to fire missiles, it does not fly its pilots over the country nor has it deployed ground troops.

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The 90-day period elapsed on June 19, but the question still remains: does the WPR require President Obama to obtain congressional authorization to continue U.S. military engagement in Libya? According to a report released by the Obama Administration on June 15, “[t]he President is of the view that the current U.S. military operations in Libya are consistent with the [WPR] and do not under the law require further congressional authorization.” The report explains that this is because “U.S. military operations are distinct from the kind of ‘hostilities’ contemplated by the Resolution’s 60 day termination provision,” noting, for example, that U.S. engagement does not involve any ground troops. While the White House Counsel and State Department Legal Adviser have publicly supported the President’s interpretation of “hostilities,” the Pentagon General Counsel and the acting head of the Justice Department’s Office of Legal Counsel are reported to believe that the U.S. military actions amount to “hostilities” and thus require the President to obtain congressional authorization.

Members of Congress are divided on whether the WPR requires authorization in these circumstances. A bipartisan group of ten U.S. House members led by Rep. Dennis Kucinich filed a lawsuit in the D.C. District Court on June 15 against Obama for failing to obtain requisite authorization under the statute. The members’ suit is likely to be dismissed for lack of standing (see Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), a case with nearly identical facts). Congress could also try to impact the President’s decision by passing a resolution in support or disapproval of U.S. operations in Libya or by suspending funding for the operations pursuant to its powers under Article I, § 8 of the Constitution. On June 24, the House voted on two such bills – H.R. 2278 (limiting the use of funds by the U.S. Armed Forces in NATO’s Libya mission) and H.J.Res 68 (authorizing the limited use of the U.S. Armed Forces in NATO’s Libya mission). Both pieces of proposed legislation failed to pass.

Presidents of both parties have been known to ignore the WPR. This is not surprising given that the Resolution’s constitutionality is frequently questioned on the grounds that it may infringe on the President’s Article II powers.