Restoring Constitutional Balance: Accommodating the Evolution of War

IntroductionOn March 19, 2011, American forces began a campaign of air strikes against the Qaddafi regime in Libya using warplanes and missiles.1 On March 21, the President of the United States sent written notification to the leaders of Congress that "U.S. military forces . . . began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone."2 On March 30, it was reported that the Central Intelligence Agency (CIA) had operatives working on the ground in Libya to gather intelligence for military airs trikes and to assess the rebel Libyan fighters.3 The U.S. military was using spy planes and unmanned aerial vehicles (UAVs) to identify potential Libyan mili1 tary and government targets.4 By May 12, UAVs were the only American weapons being used to fire on ground targets in Libya.5 Nonetheless, other American aircraft were supporting allied attack missions.6The President took this action without consulting Congress through the process prescribed by the War Powers Resolution of 1973 ("Resolution").7 The Resolution, which was passed in response to the Vietnam War, was a congressional attempt to check executive power and restore a balance of powers in the decision to enter a war.8 Nonetheless, in response to congressional outcry against the President's unilateral action, the administration claimed that the War Powers Resolution was not applicable to the Libyan campaign.9 The Office of Legal Counsel, a unit of the U.S. Department of Justice tasked with providing legal advice to the President, reasoned that the existence of "war" is satisfied "only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a significant period."10 Thus, the military operations in Libya did not meet the administration's definition of "war."11 According to the administration's reasoning, the President may unilaterally take the nation to war using limited military means.12 What the Obama administration characterized as a unique situation in Libya, however, is becoming more common due to advances in technology and the changing face of warfare.13 The use of UAVs and cyber-warfare could inflict serious damage on another country, with, from the American perspective, limited means, no troop deployments, and possibly no involvement of military personnel.14 According to the Obama administration, there are no "hostilities" under the terms of the Resolution so long as U.S. military casualties are minimal or nonexistent.15With this backdrop, this Note asserts that warfare has evolved outside the bounds of the War Powers Resolution.16 It avers that the Resolution was an attempt by Congress to reassert its power over the decision to enter a conflict.17 Nonetheless, the scope of the Resolution is limited to the deployment of military personnel.18 The modern realities of war, which feature increased use of civilian operators and long-range attacks, are not subject to the current Resolution.19 Thus, assuming that Congress should have the power to weigh in on these matters, new war powers legislation is needed to encompass the realities of modern warfare.20Part I evaluates the history of war powers in America, specifically the debates over the U.S. Constitution, the War Powers Resolution of 1973, and the proposed War Powers Consultation Act of 2009.21 This history reflects the intent of the Framers and the rationale for balancing war powers between two branches of government.22 Part I also demonstrates the periodic struggle over war powers between the legislative and executive branches.23 Finally, the Part discusses the judicial branch's view on executive power, despite its refusal to weigh in on the war powers matter specifically.24Part II appraises the status of modern warfare.25 It first presents the increasing role of civilians and CIA operatives in modern warfare.26 Part II next describes some of the modern technology that is changing the paradigm of war. …