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Will the White House ignore the War Powers Resolution?

On Friday, the Obama administration will reach the 60-day limit on how long it can wage war in Libya without congressional authorization, as spelled out in the War Powers Resolution of 1973. But does the administration, or for that matter Congress, even care? Section 5(b) of the War Powers Resolution (50 U.S.C. § 1544(b)) mandates ...

On Friday, the Obama administration will reach the 60-day limit on how long it can wage war in Libya without congressional authorization, as spelled out in the War Powers Resolution of 1973. But does the administration, or for that matter Congress, even care?

Section 5(b) of the War Powers Resolution (50 U.S.C. § 1544(b)) mandates that:

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), 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. 

On Friday, the Obama administration will reach the 60-day limit on how long it can wage war in Libya without congressional authorization, as spelled out in the War Powers Resolution of 1973. But does the administration, or for that matter Congress, even care?

Section 5(b) of the War Powers Resolution (50 U.S.C. § 1544(b)) mandates that:

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), 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. 

President Barack Obama notified Congress of his intention to commit U.S. forces to war in Libya on March 21, so the 60-day deadline is May 20. But there’s no chance the U.S. involvement in the Libyan war will end by then and there’s no chance Congress will move to formally express its view on the war before the deadline.

Sen. Rand Paul (R-KY) circulated a letter on Wednesday, obtained by The Cable, demanding that Obama explain exactly what he plans to do.

"As recently as last week your Administration indicated use of the United States Armed Forces will continue indefinitely. Therefore, we are writing to ask whether you intend to comply with the requirements of the War Powers Resolution. We await your response," Paul wrote.

The letter was also signed by Sens. John Cornyn (R-TX), Tom Coburn (R-OK), Jim DeMint (R-SC), Ron Johnson (R-WI), and Mike Lee (R-UT).

The Cable asked NSC spokesman Tommy Vietor if the president intended to comply with the War Powers Act or even believed it to be constitutional, but Vietor declined to comment.

We’re told by two congressional sources that the White House is considering declaring that U.S. military involvement in Libya has paused, only for it to resume in a few days, thereby resetting the 60-day clock. But that questionable legal tactic, for now, is not being confirmed by anybody in the administration.

Regardless, as of Friday, any one senator can invoke the War Powers Resolution, which would force the Senate to debate the issue. Several Senate offices are scrambling now to figure out exactly how the law would be invoked, but the most likely scenario would be for one senator to raise a budget point of order, which would seek to cut off all funding for war operations in Libya immediately, thus kicking off the debate.

The White House does seem nervous about the deadline. The administration pulled Gen. James Cartwright, the vice chairman of the Joint Chiefs of Staff, from a scheduled Thursday hearing at the Senate Foreign Relations Committee, which was then cancelled.

Sens. John Kerry (D-MA) and John McCain (R-AZ) had been working on a resolution expressing support for the administration’s military intervention in Libya, but the final language was never worked out and the momentum for doing anything in the Senate with regard to Libya petered out as the focus turned to the budget battle.

Kerry told reporters on Tuesday that he was open to debating and passing a resolution in the Senate on Libya, but said he didn’t see any enthusiasm from leadership or his caucus to get something done.

Sen. Carl Levin (D-MI) said on Tuesday that a Senate resolution approving the Libya war was more trouble than it was worth because though most senators approved of the Libya war, they couldn’t agree on the details of how a resolution should be worded.

Still, there are several GOP senators who would like to use the deadline to press the administration for more clarity on the mission: goals, benchmarks, costs, and lots of other details. These senators include Sen. Richard Lugar (R-IN) who has been demanding such answers to no avail.

But GOP senators are in something of a bind on the issue, as several of them are on the record as arguing that the War Powers Resolution, which has never been challenged in court, is unconstitutional.

"I’ve never recognized the constitutionality of the War Powers Act, nor has any president, Republican or Democrat," exclaimed Sen. John McCain (R-AZ), speaking to reporters on Tuesday.

Levin predicted that if the issue came to a head, the White House would declare the law invalid.

"If we operated under the War Powers Act, [the White House is] going to say the War Powers Act is not constitutional and the whole thing ends in court," Levin said.

He added that there’s an easier and more effective way for senators to stop the war — if that’s what they want to do. They can just hold up the money.

"You don’t have to go through the complexities of the War Powers Act…. It’s called the power of the purse."

Josh Rogin covers national security and foreign policy and writes the daily Web column The Cable. His column appears bi-weekly in the print edition of The Washington Post. He can be reached for comments or tips at josh.rogin@foreignpolicy.com.

Previously, Josh covered defense and foreign policy as a staff writer for Congressional Quarterly, writing extensively on Iraq, Afghanistan, Guantánamo Bay, U.S.-Asia relations, defense budgeting and appropriations, and the defense lobbying and contracting industries. Prior to that, he covered military modernization, cyber warfare, space, and missile defense for Federal Computer Week Magazine. He has also served as Pentagon Staff Reporter for the Asahi Shimbun, Japan's leading daily newspaper, in its Washington, D.C., bureau, where he reported on U.S.-Japan relations, Chinese military modernization, the North Korean nuclear crisis, and more.

A graduate of George Washington University's Elliott School of International Affairs, Josh lived in Yokohama, Japan, and studied at Tokyo's Sophia University. He speaks conversational Japanese and has reported from the region. He has also worked at the House International Relations Committee, the Embassy of Japan, and the Brookings Institution.

Josh's reporting has been featured on CNN, MSNBC, C-Span, CBS, ABC, NPR, WTOP, and several other outlets. He was a 2008-2009 National Press Foundation's Paul Miller Washington Reporting Fellow, 2009 military reporting fellow with the Knight Center for Specialized Journalism and the 2011 recipient of the InterAction Award for Excellence in International Reporting. He hails from Philadelphia and lives in Washington, D.C. Twitter: @joshrogin

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