Marty Lederman's analysis of Lugar amendment to Kerry-McCain resolution
Marty Lederman offers this analysis over at Balkinization of two critical amendments proposed by Senator Richard Lugar and adopted by the Senate Foreign Relations Committee yesterday.
Lederman points out that the first of Lugar's amendments would legally restrict the use of ground forces, which goes further than the language in the original Kerry-McCain resolution.
Published by The Lawfare Institute
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Marty Lederman offers this analysis over at Balkinization of two critical amendments proposed by Senator Richard Lugar and adopted by the Senate Foreign Relations Committee yesterday.
Lederman points out that the first of Lugar's amendments would legally restrict the use of ground forces, which goes further than the language in the original Kerry-McCain resolution. The second of his amendments, however, has far greater significance in the debate over President Obama's authority under the War Powers Resolution:
The effect of this second Lugar Amendment, were it to become law, would be not only to reflect a congressional disagreement with the President's views on whether the Libya operations since April 4th have constituted "hostilities" for purposes of the War Powers Resolution, but also to establish going forward, as a matter of law, that those operations constituted "hostilities"--an interpretation of the the WPR that would (unlike the Executive's contrary reading) be binding in the future. Accordingly, not only would it stand as a legislative rebuke to the President's construction of the statute, but in addition it would establish a legal precedent on the meaning of the term "hostilities" that the Executive would be compelled to take into account in assessing the application of the WPR 60-day clock for future military operations. In that respect, the Kerry/McCain resolution, with this Lugar Amendment, would be both an authorization of the current Libya operation, and a statutory constraint on the Executive--a rare congressional pushback that serves, as a practical matter, to "enforce" the WPR.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT.
Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
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