Can the president of the United States wage war without congressional approval, as long as he uses drones to do the killing?
The Obama administration seems to think the answer is yes.
[C]urrent U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision. … U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.
One reason why U.S. operations don't involve "sustained fighting," "active exchanges of fire," or a "serious threat" of U.S. casualties is that we're using drones. As the report noted, "American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets." Libyan ground forces can't exchange fire with machines that target them from 15,000 feet. And they can't kill pilots who aren't there.
On Tuesday, State Department legal adviser Harold Koh spelled out the administration's position in testimony before the Senate Foreign Relations Committee. Koh cited four reasons why the Libya operation didn't qualify as "hostilities" under the War Powers Resolution. The first reason was that the mission was limited. Koh went on:
Second, the exposure of our armed forces is limited: To date, our operations have not involved U.S. casualties or a threat of significant U.S. casualties. Nor do our current operations involve active exchanges of fire with hostile forces, and members of our military have not been involved in significant armed confrontations or sustained confrontations of any kind with hostile forces. …
Third, the risk of escalation is limited: U.S. military operations have not involved the presence of U.S. ground troops, or any significant chance of escalation into a broader conflict characterized by a large U.S. ground presence, major casualties, sustained active combat, or expanding geographical scope. …
Fourth and finally, the military means we are using are limited … American strikes have been confined, on an as-needed basis, to the suppression of enemy air defenses to enforce the no-fly zone, and to limited strikes by Predator unmanned aerial vehicles against discrete targets in support of the civilian protection mission …
Koh mentioned drones just once. But they affect three of the four factors he outlined. They limit the exposure of our armed forces. By avoiding casualties, they limit the risk of escalation. And by hunting and killing efficiently, they spare us the need to apply heavier force.
Koh told Sen. Richard Lugar, R-Ind., that critics of the administration were wrong to charge "that we are somehow suggesting that drones get a free pass under the War Powers Resolution. That's not at all what we're saying." When Sen. Bob Corker, R-Tenn., accused Koh of "arguing that a president can order Predator strikes in any place in the world" without congressional involvement, Koh replied, "That's not what I'm arguing. If Predator strikes were at a particular level, or if we were carpet-bombing a country using Predators, that would create a dramatically different situation."
But Koh never explained how those differences would affect the resolution's application to a drone war. In fact, he asserted that the resolution doesn't cover remotely piloted weapons at all.
Koh told Lugar, "When the statute talks about the introduction of U.S. armed forces into hostilities, and what you are sending in is an unmanned aerial vehicle high in the sky, it's not clear that that provision was intended to apply to that particular weapon." An hour later, in an exchange with Sen. Chris Coons, D-Del., Koh added: "If we are concerned about unmanned uses of weapons that can deliver huge volumes of violence, a statute which only deals with the introduction of U.S. armed forces does not address that situation." (You can watch the exchange in the hearing video at the two-hour mark.)
That's a pretty clear statement that the War Powers Resolution doesn't apply to drones. The resolution refers to the "use of United States Armed Forces." Koh, representing the administration, says that a statute using this language doesn't address unmanned weapons, even if, in Koh's words, they "deliver huge volumes of violence." So it doesn't matter how aggressive the mission and the means are. The resolution still doesn't apply, because, as Koh explained to Coons, the lawmakers who passed it in 1973 "weren't thinking about drones."
The administration is trying to have it both ways. To soothe Congress, it's implying that under a complex four-factor analysis, there's some level of violence at which a president would need congressional authorization to continue using remotely piloted weapons. But as a textual matter, it's claiming that drones don't need such authorization.
Which is it, Mr. Koh?
Readings I recommend: Several legal scholars have written good articles and blog posts on drones and the law. If you're interested in this topic, check out the ongoing coverage at Lawfare (including these posts), Opinio Juris (including these posts), EJIL: Talk! (including these posts), and Balkinization (including this post). You can find Harold Koh's 2010 analysis of drones, law, and the "use of force" on the State Department website. And courtesy of the New America Foundation, you can watch video of a recent conference on Drones, Remote Targeting, and the Promise of Law.