Critics argue Obama is relying on ‘unpersuasive theory’ used in Libya but administration says deployment is not covered by 1973 resolution

The legal basis for the recent introduction of more than 1,000 US ground troops in Iraq was called into question on Friday, after the White House confirmed that it does not consider itself bound by time limits that usually constrain such deployments.



Under the terms of the 1973 War Powers Resolution, troop deployments into war zones may not last longer than 60 days, unless Congress explicitly authorises military force.

As no congressional authorisation yet exists – Congress returns from its August recess next week – lawyers have wondered about the solidity of the legal grounding for the latest US war in Iraq.

Friday marks the 82nd day since the initial congressional notification on 16 June, when Barack Obama announced the deployment of 250 troops to Baghdad, ostensibly to secure the embassy against the Islamic State (Isis). Since then, the US has increased its military presence in Iraq by an order of magnitude. Additional notifications have followed.

Before June, 100 personnel were stationed in Iraq to train local forces on military hardware purchased from the US. Soon, the number will be 1,211, assigned to Baghdad and Irbil. They include special operations “advisers” helping Iraqi and Kurdish forces defend themselves against Isis and assessing the state of the Iraqi military; and forces protecting US diplomats and other citizens. Starting on 8 August, US fighter jets and drones began attacking Isis directly, launching a total of 131 air strikes by Friday.

The Obama administration insists that none of the successive increases in personnel since 16 June amount to “combat deployments” – a distinction that it says has legal implications for its War Powers Resolution obligations.

Iraq Graphic by Nadja Popovich/The Guardian

“The 60-day provision in the War Powers Resolution applies only in circumstances in which US armed forces are introduced ‘into hostilities or into situations where imminent hostilities is clearly indicated by the circumstances,’” Bernadette Meehan, a National Security Council spokeswoman, told the Guardian.

“As the president has made clear, none of these US armed forces are intended to serve in a combat role in Iraq.”

It is less clear if the White House considers the more recent air strikes, which are in their 29th day, trigger the 60-day window. The administration has yet to commit to seeking congressional authorisation for military action against Isis, and has thus far pledged to merely to “consult” with Congress.

“The administration will continue to consult with the Congress on the way forward in Iraq and our efforts against [Isis], and we will continue to provide appropriate reports to the Congress consistent with the War Powers Resolution. Beyond that, we don’t have anything to announce,” Meehan said.

It is not the first time the Obama administration has argued that its military engagements were exempt from the War Powers Resolution timetable. In 2011, it argued that its air-and-sea-launched campaign against Muammar Gaddafi in Libya, never authorised by Congress, fell outside the 60-day restriction. That war lasted around eight months.



Yet some of the circumstances undergirding the administration’s contentions about Libya appear different from those surrounding its Iraq deployments. In June 2011, a senior State Department lawyer rested the claimed exemption from the War Powers timetable on what he called the “limited” nature of the mission; a minimal exposure of US forces to attack, centring on “the absence of US ground troops”; a reduced “risk of escalation; and limited “military means”.

In Iraq, Obama has emphasised a “limited” mission thus far, but has introduced over 1,000 new ground forces over the past 82 days. Means employed against Isis thus far have included fighter jets, bombers, armed drones and carrier-launched warplanes in addition to the ostensibly noncombat ground forces. There is considerable prospect of the numbers increasing further, as the Pentagon has now provided Obama with military options for air strikes in Syria, and has repeatedly ratcheted up ground forces in Iraq.

“Had any of these elements been absent in Libya, or present in different degrees, a different legal conclusion might have been drawn,” Harold Koh, then the State Department’s legal adviser, told the Senate foreign relations committee.

Additionally, Obama has described a mission that has stretched from attacking Isis outside Irbil to bombing it near the Mosul dam as necessary for protecting US personnel inside Iraq, which carries the added legal benefit of self-defence, a rationale Congress is unlikely to challenge.

Jack Goldsmith, an assistant attorney general in the George W Bush administration who has recently blogged about the applicability of the War Powers Resolution to Iraq, said Obama’s legal reasoning was shaky if it applied to the US air war, though he did not think the arrival of ground troops in Baghdad triggered the clock.

“’Combat’ is not what starts the War Powers Resolution clock. The introduction of US troops into ‘hostilities’ or ‘imminent hostilities’ is what does so,” Goldsmith told the Guardian via email.

“The administration appears to be relying on the same unpersuasive theory it used to avoid War Powers Resolutions scrutiny during its months-long bombings of Libya in 2011. The essence of that theory is that drones do not endanger US troops and thus do not create hostilities. But common sense suggests that firing numerous missiles from drones (120 air strikes as of a few days ago) on many different targets in Iraq to kill threatening terrorists and cause them to lose arms, equipment, and territory, counts as ‘hostilities’.”

Goldsmith continued: “The situation in Iraq is even more clearly ‘hostilities’ or the threat of them than the situation in Libya, because in addition to the drone strikes, we have many hundreds of ground forces in Baghdad to protect the embassy, and, reportedly, special operations forces on the ground, near the fighting, north of Baghdad.”

Successive administrations, of both parties, have put aside the War Powers Resolution when convenient, but have rarely faced consequences from Congress for doing so. Ambiguities in the text have provided ample opportunities for US officials over the years. In 2011, Koh noted to the Senate panel that “whether a particular set of facts constitutes ‘hostilities’ for purposes of the resolution has been determined more by interbranch practice than by a narrow parsing of dictionary definitions”.

Mary Ellen O’Connell, an international law professor at Notre Dame university, who is often sceptical of unilateral legal declarations by US presidents, said the administration’s argument about the War Powers timetable had merit.

“I’d agree with them that the 800 or so doing security around the US embassy and advising Iraqi forces, they are not being introduced into hostilities. Hostilities, under international law, is the actual fighting of an armed conflict,” she said.

“But we’re back to the Libya problem. The person on the street and the expert on use of military force sees pilots in planes and drones’ engagement in hostilities as coming under the War Powers Act, so 60 days from 8 August, if the president wants to comply with the War Powers Act, he needs to come to Congress for a resolution.”

In Wales, the administration on Friday announced it had assembled the core of an international coalition against Isis. But US officials are describing a campaign that could last years before the jihadist army is destroyed, the long-term US goal Obama has announced.

“It’s going to take time, and it’ll probably go beyond even this administration to get to the point of defeat,” Antony Blinken, a deputy national security adviser, told CNN on Wednesday.

• This article was amended on 5 September to clarify a quote from former assistant attorney general Jack Goldsmith.