Future War and the War Powers Resolution

• Jurisdiction: United States,Federal
• Publication year: 2015
• Citation: Vol. 29 No. 3

Future War and the War Powers Resolution

Eric Talbot Jensen

FUTURE WAR AND THE WAR POWERS RESOLUTION

Eric Talbot Jensen^*

Abstract

Since its passage in 1973 over the veto of then-President Nixon, the War Powers Resolution (WPR) has been laden with controversy. Labeled as everything from ineffective to unconstitutional, the WPR has generally failed in its design to require notification and consultation to Congress by the President. Despite numerous proposals to amend the WPR, it continues to languish in the twilight of Executive war powers, and its future is bleak.

With emerging technologies such as drones, cyber tools, nanotechnology, and genomics, the ineffectiveness of the WPR will prove even more profound. The WPR's reliance on "armed forces" and "hostilities" as triggers for the reporting and consulting requirements of the statute will prove completely inadequate to regulate the use of these advanced technologies. Rather, as the President analyzes the applicability of the WPR to military operations using these advancing technologies, he will determine that the WPR is not triggered and he has no reporting requirements. Recent conflicts (or potential conflicts) in Libya, Syria and Iraq highlight this inevitability.

For the WPR to achieve the aim it was originally intended to accomplish, Congress will need to amend the statute to cover emerging technologies that do not require "boots on the ground" to be effective and which would not constitute "hostilities." This article proposes expanding the coverage of the WPR from actions by armed forces to actions by armed forces personnel, supplies or capabilities. The article also proposes expanding the coverage of the statute to hostilities and violations of the sovereignty of other nations by the armed forces.

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Introduction..............................................................................................501

I. Future Armed Conflict.................................................................504

A. Means of Warfare ...................................................................... 505

1. Drones ................................................................................. 505
2. Cyber ................................................................................... 507
3. Robots and Autonomous Weapons ...................................... 509
4. Nanotechnology................................................................... 512
5. Virology and Genomics ....................................................... 513

B. Methods of Warfare................................................................... 515

1. Latent Attacks ...................................................................... 516

II. The War Powers Resolution........................................................517

A. History....................................................................................... 517
B. Text ............................................................................................ 521
C. Issues ......................................................................................... 522

1. Section 5 .............................................................................. 522
2. Section 4 .............................................................................. 525

a. Armed Forces ............................................................... 526
b. Hostilities ...................................................................... 530

3. Geographic Space ............................................................... 533
4. Substantial Enlargement ..................................................... 534

III. Ineffectiveness of the WPR.......................................................... 534

A. Armed Forces ............................................................................ 535

1. Drones ................................................................................. 535
2. Cyber Operations................................................................. 537
3. Other Emerging Technologies............................................. 539

B. Hostilities ................................................................................... 540

1. Drone Operations................................................................ 540
2. Cyber Operations ................................................................. 541
3. Other Emerging Technologies ............................................. 543

IV. Amending the WPR.........................................................................543

A. Previously Proposed Solutions.................................................. 544

1. Legislative Proposals .......................................................... 544
2. War Powers Consultation Act of 2009 ................................ 546
3. Rules of Engagement (ROE)................................................ 548
4. All Offensive Strikes ............................................................ 550

B. A Proposal for Future Armed Conflicts ..................................... 552

1. Supplies or Capabilities ...................................................... 552
2. Violation of Sovereignty ...................................................... 553

Conclusion..................................................................................................555

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Introduction

As United States President Barack Obama contemplated taking military action against Syria in the wake of alleged chemical attacks, he stated that he had authority to do so without Congressional approval.¹ However, after deciding to consult Congress, he was told that the wording of any resolution that would receive Congressional approval would have to be narrowly tailored, limiting the use of armed forces both in time and type.² In fact, Senator John McCain threatened that if President Obama were to put "boots on the ground" in Syria, he would face impeachment.³ These preconditions for Congressional approval invoke the traditional tension between Congress's constitutional power to "declare war"⁴ on one hand and the Executive's foreign affairs power and the President's role as Commander in Chief on the other.⁵

The debate is not new. Books,⁶ judicial opinions,⁷ commission reports,⁸ law reviews,⁹ and newspapers¹⁰ regularly discuss this tension between Congress

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and the President on the use of military force. The debate has been characterized by what seems to be an ever-increasing adventurism by the President and an ever-decreasing willingness to exert power by the Congress.¹¹ Perhaps the last show of real strength in the debate from Congress came in the immediate aftermath of the Vietnam War.¹² With the President in crisis,¹³ Congress passed a joint resolution that became known as the War Powers Resolution (WPR).¹⁴ It was intended to re-exert Congress's power over war making and force the President to provide notification and seek approval for the use of the military.¹⁵ After passage, President Nixon immediately vetoed the Resolution, claiming it was clearly an unconstitutional infringement on his role as the Executive.¹⁶

Congress responded by overriding President Nixon's veto on November 7, 1973.¹⁷ Almost immediately, the War Powers Resolution became a source of great controversy. In addition to President Nixon and his successors,¹⁸ scholars¹⁹ have claimed the WPR is an unconstitutional infringement on Commander-in-Chief powers. These constitutional issues can be broadly characterized in two major categories: the allocation of war powers between the President and Congress; and, the requirement for the President to withdraw

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forces either after sixty days of inaction by Congress approving the deployment or after a concurrent resolution by Congress.²⁰

One of the topics that has received insufficient attention in the continuing discourse, and the topic of this article, is the potential impact and applicability of the WPR to future armed conflicts.²¹ The world stands on the threshold of incredible advances in weapons technology that are of such a qualitative nature the borders of the current laws governing the use of force will be pushed.²² The use of cyber tools to accomplish military operations, the development and weaponization of nanotechnology, the linkage of virology to individual or group DNA, the automation of weapons systems, and the development of robotics all represent likely aspects of future armed conflicts whose effects on the WPR have not yet been considered.

The WPR is not sufficiently clear with respect to its application to future weapon systems. The triggering language of "in any case in which United States Armed Forces are introduced—(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; [or] (2) into the territory, airspace or waters of a foreign nation," was written in an era where the means and methods of armed conflict were centered on humans interacting on a geographically limited battlefield.²³ Though this will continue to be true in the future for most armed conflicts, technologically advanced nations such as the United States are developing and will continue to develop new weapons that will not require human interaction in combat to be effective.²⁴ The current language of the WPR is ineffective to ensure Congressional participation in the President's use of these weapons. If Congress intends the WPR to act as a restraint on presidential use of force in the future, the WPR needs to be amended to clarify that "boots on the ground" and hostilities are not the only required trigger to invoke the WPR's provisions.

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Part I of this paper will highlight some of the advancing technologies and resulting current and future weapons systems that the United States has and will have in its arsenal. Part II will briefly discuss the passage of the War Powers Resolution and the demonstrated...