The War Powers Resolution: more loophole than law

By , Michael J. Glennon, former legal counsel of the Senate Foreign Relations Committee, is associate professor of law at the University of Cincinnati.

Current disagreements concerning the application of the War Powers Resolution to the presence of 1,200 marines in Lebanon highlight ambiguities in the 1973 law.

The two chief sponsors of the resolution, former Sen. Jacob Javits and Rep. Clement J. Zablocki, have expressed concern about the report filed with Congress Sept. 29 by President Reagan. The report, they suggested, should have acknowledged that the 60-day time limit was triggered. ''How can you pretend for a minute,'' Mr. Javits asked, ''that there is no imminent danger when you put marines in Lebanon?''

The former New York senator was referring to the resolution's ''category one'' reporting requirement: It requires the president to notify the Congress in writing whenever members of the United States armed forces are introduced ''into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.'' From the date that report is submitted , the president has 60 days - 90 days in the event of ''unavoidable military necessity'' - before he is required to withdraw the forces.

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The problem is that this is not the only reporting requirement. Two other categories of military activity require reports - reports that do not set the clock ticking. A report is required when forces are introduced ''into the territory, airspace or waters of a foreign nation, while equipped for combat.'' A report is also required when forces are introduced ''in numbers which substantially enlarge United States armed forces equipped for combat already located in a foreign nation.''

How is the president to choose which report to submit? Amazingly, the resolution does not require that he make a choice, in that the president need not specify into which of the three categories his report falls. Thus President Ford did not indicate, in the reports submitted upon the evacuation of Phnom Penh and Saigon, into which category the reports fell, nor did President Reagan do so in reporting the operation in Lebanon.

Indeed, it was never clear, legally, that the presidential messages were actually War Powers Resolution reports. President Ford said he was merely ''taking note of'' the resolution, and President Reagan suggested that his letter was ''consistent with'' it.

True, the resolution does say that the time period begins when a first-category report is required to be submitted. But the resolution leaves the key words - ''introduced'' and ''hostilities'' - undefined. Is the trigger pulled when US forces suddenly find themselves under unforeseeable attack? They have not, in such a situation, been actively ''introduced'' into hostilities. (For this reason the House version of the resolution used the word ''committed'' instead of ''introduced.'')

Four marine casualties were incurred in Lebanon through the accidental detonation of explosives; did these occur in ''hostilities?'' The upshot is that a gradual escalation of hostilities could generate serious confusion as to the date on which the time limit was triggered.

The terms obviously are not self-defining, and, because the resolution provides no guidance as to their meaning, the executive branch has formulated its own definitions. ''Hostilities,'' its definition has it, means ''a situation in which units of the US armed forces are actively engaged in exchanges of fire with the opposing forces.''

That the Congress meant to exclude exposure to minefields - or missiles, or chemical or biological agents, or neutron rays - from the coverage of the resolution is doubtful. But there is little question that its failure to define critical terms and to require specificity in reports has left the door open to semantic circumvention.

It is an unfortunate commentary on the grandiosity of congressional egos that such a situation should persist. These and a number of other equally serious flaws in the resolution came to light during review hearings conducted by the Senate Foreign Relations Committee in 1977. The committee considered remedial legislation which would have plugged the various loopholes. The bill was not taken up, however, because opposition among House Democratic authors of the resolution would have rendered the effort futile.

The time has come for the resolution's sponsors to set aside pride of authorship, acknowledge its sloppy draftsmanship, and return with sandpaper to what was left chiseled.

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