President Obama has less than 30 days before he has to withdraw the first 275 U.S. troops ordered to Iraq under the War Powers Resolution, though legal experts say numerous loopholes give the White House a great deal of flexibility on that timetable.
Under the resolution, a president can only commit U.S. troops to “hostilities” for 60 days, plus a 30-day withdrawal period, if there is no congressional approval to use military force or a declaration of war.
That clock is rapidly winding down.
The resolution — which was intended to prevent mission creep after the Vietnam War — is written so loosely, a number of legal scholars say that it has no practical effect on constraining the president.
Obama has ordered airstrikes in Iraq and sent hundreds of troops to the country to battle the Islamic State in Iraq and Syria.
The first 275 troops were sent in mid-June, and the deadline for bringing them back is fast approaching.
Each time the president commits forces to a new mission, however, a notification to Congress can reset the 90-day clock, giving the administration broad latitude.
The flexibility in the resolution has led to calls from lawmakers in both parties for Congress to take action. Sens. Rand PaulRand PaulDestructive 'fat cat' tax law a complete flop. It's time to repeal it. Trump’s must take action in Macedonia to fix the damage done by Obama and Clinton We can put America first by preventing public health disasters MORE (R-Ky.) and Tim KaineTim KaineOvernight Defense: US moving missile defense system to South Korea | Dems want justification for Syria strike | Army pick pushes back against critics of LGBT record Kaine, Schiff press Trump on legal justification for Syria strike Democrats thought they could produce a political earthquake in Kansas MORE (D-Va.) are among the public officials who have said Congress should vote on whether to take action in Iraq.
Such a vote before November's midterm elections is one members of both parties likely want to avoid.
Anti-war sentiment in the United States remains high, but leaders in both parties are wary of binding Obama's hands with ISIS.
Since June 16, President Obama has authorized the deployment of 775 U.S. troops to Iraq after fighters with ISIS took over Mosul, Iraq’s second largest city.
Obama has submitted five separate reports to Congress, updating lawmakers on additional deployments and new military missions, which have gone from humanitarian airdrops for Iraqi refugees to airstrikes to help local forces recapture the country’s largest dam.
Each time, the president’s letters have been carefully worded, making it unclear if the administration accepts the clock is even running under the War Powers Resolution, experts say.
“A lot of the letters are worded in a way to avoid conceding that the letter is starting the clock,” said Stephen Vladeck, professor of law and the associate dean for scholarship at the American University Washington College of Law.
“The letters are very careful to say they are ‘consistent’ with the War Powers Resolution, but not that they are constrained by it,” he added.
The president’s lawyers could also argue that U.S. troops are not actively engaged in combat “hostilities,” claiming they were only deployed to protect U.S. personnel and facilities in Baghdad.
The White House could say the president does not need congressional approval to protect Americans abroad, Vladeck argued.
“You have this very delicate dance to do everything he can to at least look like he is complying without acceding to it.” he said.
Another expert, Peter Raven-Hansen, Glen Earl Weston Research Professor of Law and co-director of the National Security and U.S. Foreign Relations Law Program at the George Washington University, agreed, saying that the president’s letters to Congress have been unclear on whether troops are deployed in harm’s way, triggering the War Powers clock.
Experts say that the War Powers Resolution was originally intended to apply the clock to the entire theater of war and not every new deployment.
“The whole point of the War Powers Resolution was to avoid drifting into a war, and not allow that kind of incremental increase,” Vladeck said.
But scholars concede that administrations have regularly circumvented those limits despite criticism from lawmakers.
If Obama extends the 60-day window in Iraq, he won’t be the first president to skirt the limits of the War Powers Act, nor will it be the first time he has done so.
On March 19, 2011, Obama authorized U.S. airstrikes against Libyan dictator Moammar Gadhafi’s regime as part of a NATO campaign.
On the 60th day after authorizing U.S. military force in Libya, Obama sent a letter to Congress noting that on April 4, the U.S. had transferred responsibility for the military operations to NATO. The president said that since that date the U.S. was only playing a "supporting role," according to a Sept. 25, 2012, Congressional Research Service report.
Despite congressional concerns over the mission, a House resolution to require Obama to end the intervention in Libya pursuant to the War Powers Resolution failed 148-265 on June 3.
The House eventually passed a watered-down resolution that only sought to constrain U.S. military activities, and required the president to report on operations.
The White House also said the operations did not require congressional authorization because they were not the sort of “hostilities” the law was intended to cover in the absence of sustained fighting, the report noted.
In Iraq, the White House could resolve the ambiguities of the War Powers Resolution by seeking a new authorization of military force.
Sen. Ron JohnsonRon JohnsonTrump should work with Congress to block regulations on prepaid cards Five reasons to worry about the ShadowBrokers hack Border Patrol could drop polygraph requirement for new agents: report MORE (R-Wis.) said on “Fox News Sunday” that Obama had recently met with members of the Armed Services and Foreign Relations committees to discuss a new authorization.
Congress is only in session for 12 days when it reconvenes in September ahead of the midterms, however. And congressional leaders from both parties would be reluctant to press ahead with an Iraq vote before November’s elections.
“The central problem with the War Powers Resolution is that it creates disputes that no one can resolve,” Vladeck said.
“The only entities that can resolve such disputes are the courts, who have never shown any inclination to entertain such disputes."
Over the weekend, the U.S. upped its air campaign in Iraq. Key airstrikes targeted ISIS forces around the Mosul Dam, the largest in Iraq, allowing local forces to recapture the structure.
The White House provided a new War Powers Resolution notification, saying the action was needed to protect “critical infrastructure” in Iraq.
Raven-Hansen called that justification “a stretch beyond the breaking point,” arguing that protecting critical infrastructure is not listed in the War Powers Resolution.
“It’s a creeping slippery slope,” he said. “It starts with protecting civilians on a mountaintop, protecting Americans in Erbil, then helping the Iraqi force, then protecting critical infrastructure."