Jack Goldsmith has a fascinating post, positing a theory why the President has sent a letter to Congress after each specific military action in Iraq (this pattern had also crossed my mind, but I didn’t make the connection):
Second, the administration is trying to circumvent WPR time limits on it deployment of troops and uses of force in Iraq. (NSC spokeswoman Caitlin Hayden recently dodged whether the WPR applied to the recent air strikes and related actions in Iraq.) What follows is my analysis of this second possibility.
Simplifying somewhat, Section 4(a) of the WPR requires the President to inform the Speaker of the House and the President pro tempore of the Senate about the scope and legal basis for the introduction of U.S. armed forces into hostilities and related situations. Section 5(b) then states that within 60 (or some circumstances 90) days, “the President shall terminate any use of United States Armed Forces with respect to which such report was submitted,” absent appropriate congressional authorization. The duty to terminate hostilities is tied to any use of the armed forces with respect to which the original report was submitted. If the use of the armed forces with respect to which the report is filed is narrowly defined, then arguably no duty to report materializes if the discrete use of the armed forces related to the report terminates before the 60 days.
In other words, each strike is a different action, that starts a new 60 day clock.
So for example, the administration might argue that the use of force with respect to the Mount Sinjar siege (the topic of the August 8 letter) is over and thus no clock is running with respect to that use of force. And the same might go for the use of force with respect to the Mosul Dam that was the topic of the August 18 letter. As long as that use of force is over within 60 days after it began, the argument goes, the clock stops with respect to that action even though operations continue in Iraq. On this logic, if the President reports to Congress about discrete missions in Iraq, and if each discrete mission lasts less than 60 days, the President can use force in Iraq indefinitely without triggering Section 5(b).
This strained and bizarre interpretation would allow the President to flout the 60 day clock by treating each attack as a separate “original report.”
Discrete mission reporting to avoid WPR time limits fits reasonably well with the text of the WPR, though of course not with its spirit. If this is what the administration is up to, then it has found a clever way – in an era of nimble, distinct, drone-dominated missions – to gut what little may be left of the WPR’s time limits. (Discrete reporting of this sort might not be unprecedented.
This is even worse than Harold Koh’s redefinition of “hostilities.”
As I once noted, “President Clinton submitted four WPR reports to Congress over a seven-month period every time the U.S. had a significant air strike in Bosnia,” though we don’t know if this was done to skirt the WPR, or under what theory.) Moreover, discrete reporting is not the only way the President might avoid a duty to terminate the use of U.S. armed forces in Iraq under Section 5(b). He might claim, as he controversially did in Libya, that the armed forces deployed in Iraq are not engaged in “hostilities” under Section 4(a) and thus that the duties of Section 5(b) are not in play. (This was a bad argument in Libya but would beworse as applied to air strikes in Iraq (see addendum.)) Or the President might claim that he reported to Congress under Section 4(b) or (c), not 4(a), and thus has no duty to terminate the use of U.S. forces under Section 5(b). (Again, probably not a great argument for all of the current uses of force in Iraq.)
In any event, we have now hit the 60-day mark from the first attack on Baghdad.
The President’s legal team is apparently already using one of these legal rationales. The first Iraq WPR, concerning the troops sent to Baghdad, was sent to Congress in June, more than 60 days ago, and I believe the troops are still in Baghdad to defend the embassy. Assuming someone inside the Executive branch is paying attention to this issue (no one in Congress seems to have noticed), the legal rationale for why the Section 5(b) termination duty has not been triggered is probably that the troops in Baghdad are not engaged in hostilities and do not face an imminent threat of hostilities. This argument is plausible in the Baghdad context but is much harder to make with respect to the bombing (and Special Operations Forces) north of Baghdad. The clock for those bombings and those forces started ticking in early August, and in that context the President may have to rely on the discrete reporting argument outlined above to skirt Section 5(b). We probably won’t know the administration’s legal theory in that context until early October, when the sixty-day clock on the August uses of force in Iraq ostensibly expires – assuming, that is, that the President has not satisfied the WPR in the interim by winning congressional authorization (or an extension of time) for the Iraq deployment.