Does the War Powers Resolution Apply to a US Attack on Syria?

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Audio Transcript:

Marco Werman: I'm Marco Werman. This is The World. So if President Obama decides to launch a military strike against Syria, does he need permission from Congress? And what about the War Powers Resolution? That law was passed in 1973 over President Nixon's veto in the waning days of the Vietnam War. It was designed to give Congress a clear role in any decision to deploy US forces into hostilities. Bobby Chesney is a professor at the University of Texas School of Law in Austin. He says the resolution was controversial in 1973, and it still is today.

Bobby Chesney: Those who favor presidential initiative in the use of force resist it, suggesting it's unconstitutional. Those who actually favor Congressional prominence in this process critique it, saying it's not actually effective enough.

Werman: So what exactly was said is the War Powers Resolution and why was it is so controversial?

Chesney: Well, there are a number of moving parts in the War Powers Resolution. There's a consultation requirement. The idea here is that the president should consult with Congress before introducing US armed forces into hostilities or a circumstance where maybe the fighting hasn't begun yet, but hostilities are imminent in the circumstances. Now, the statute doesn't specify what counts as consultation.

Werman: If the White House comes back and says, well, we had that conference call last night with senators and representatives. That's our consult.

Chesney: There you go.

Werman: Would that be valid?

Chesney: It would be hard to show in the statute how it wouldn't be valid.

Werman: What about the word "hostilities"? What defines hostilities?

Chesney: The statute requires that written notice be given within 48 hours of introducing forces into hostilities or circumstances where hostilities are imminent. Now, for I think most listeners, you hear hostilities, you think, well, I'm not quite sure exactly where the boundary lines for hostilities lie, but there's a war on in Syria, and if you're sending cruise missiles into Syria, sounds like you've got hostilities to me. Here's the thing, and this is the sort of thing that lawyers love and non-lawyers loathe, hostilities is a term of art in this statute. During the intervention in Libya in 2011, this question became very critical, because the intervention went on for well beyond 60 days. The State Department's legal advisor testified before Congress and the explanation he gave was that if you look at how the word "hostilities" in the statute was interpreted over the years, it was always understood to be a special term of art that was triggered when you had a certain scale or intensity of the violence, and a really important factor was would US personnel be in harm's way. And in a circumstance where what the US was doing militarily was drone strikes, air support in the form of refueling and intelligence and command and control from the air, but no US personnel were on the ground or in any serious risk of being in harm's way or getting dragged into harm's way, the argument was, well, that's not actually hostilities as far as the statute's concerned. Now, map that onto what we're looking at happening in Syria, and you can see where it's almost certain they would make the same argument.

Werman: That 48-hour notification. Is that transparent? Will the public know when the clock starts to tick?

Chesney: For political reasons, the Executive Branch has tremendous incentive to go along at least with the notification part of this process and the consultation part of the process, and relatedly, to make public sooner or later at least some version of the written notification. The geographic sprawl of the conflict with Al-Qaeda and insensitivities surrounding where exactly in the world some sort of counter-terrorism-related military deployment might have occurred, there's a been a pattern in recent years of written notices that have a public element, or an unclassified element, and then a classified annex. But in this case, given the overt nature of what's happening in Syria, there's just no doubt that the notification element would be quite transparent to the public.

Werman: When is it ever necessary for Congress to vote to approve presidential action for going to war?

Chesney: There have been many who have written and argued that when it comes to usiing force outside the United States, that the concept of Congress having the key role really suffered a massive blow with Truman's decision to introduce US forces in Korea without explicit Congressional authority, and that further and further examples, Kosovo being another example, Libya being the most recent example. You have a real divide of opinion as to whether this is, perhaps it was really always intended to be a matter that Congress and the Executive Branch worked out politically between themselves, and others who think that we've really lost touch with the constitutional foundations of how this is supposed to work, and that in the modern world the president has excessive discretion in this area.

Werman: Bobby Chesney, professor at the University of Texas Law School. Thanks so much for telling us about this.

Chesney: Thank you very much.