War Powers List Topic

In light of Stephen Heidts recent memorandum and concerns that the list topics did not include broad troop cases specifically, I have revisited the issue with some potential resolutions that attempt to get to the heart of the war powers debate and do not blur the lines with the Commander in Chief debate. I want to be clear that there are my opinions and do not necessarily reflect the opinions of the list group as a whole. This proposal is offered to supplement, not supplant earlier work. Also, please, keep in mind that the terminology has not been vetted as much as the original and this is a working draft. I admit that I am not very good at crafting the terms but I hope it pushes us to think about the issues more. Im not even saying that this is the best of the lists, just an option to consider in light of the feedback on the list resolutions. Any comments/suggestions are welcome.

Possible resolutions based on *war powers*:

Resolved: The United States federal government should increase statutory restrictions through the War Powers Resolution and/or the Authorization for Military Force on the President of the United States to: use remotely deployed weapon systems, including targeted killings from unmanned aerial vehicles and offensive cyber operations; and/or deploy armed forces or civilians in combat operations without Congressional consultation or approval. Resolved: The United States federal government should increase statutory restrictions through the War Powers Resolution and/or the Authorization for Military Force on the President of the United States to: use remotely deployed weapon systems and/or deploy armed forces or civilians in combat operations without Congressional consultation or approval. (Same as the first, just omitting the specificity of the remotely deployed weapon systems.) Resolved: The United States federal government should increase statutory restrictions through the War Powers Resolution and/or the Authorization for Military Force on the President of the United States to: use remotely deployed weapon systems, including targeted killings from unmanned aerial vehicles and offensive cyber operations; and/or deploy troops or civilians in combat operations without Congressional consultation or approval. (Same as the first, but says troops instead of armed forces.) Resolved: The United States federal government should increase statutory restrictions on the war powers of the President of the United States to: use remotely deployed weapon systems, including targeted killings from unmanned aerial vehicles and offensive cyber operations; and/or deploy armed forces or civilians in combat operations without Congressional consultation or approval. (Same as the first but omits WPR & AUMF.) Resolved: The United States Congress and/or Supreme Court should increase restrictions through the War Powers Resolution and/or decrease allowances in the Authorization for Military Force on the war powers of the President of the United States to: use remotely deployed weapon systems, including targeted killings from unmanned aerial vehicles and offensive cyber operations; and/or deploy armed

forces, civilians or government officials in combat operations without Congressional consultation or approval. (This one specifies agents instead of federal government, removes statutory and tries to use two different verbs.)

Rationales
The impetus for the resolutions was explained above. I am not necessarily against listing very specific clauses as we did in the list topics to be considered. If people feel that it enhances the resolution, then Im all for it. Below I explain why I think each of the phrases allow for the core areas to be debated. The original paper included the language deploy military forces without congressional approval. Kelly Young posted on the forums, in response to the concern that the broad language would allow nuclear weapons cases, that the term needed to be narrowed. I dont think the term itself is bad, the problem is that it had no modifier there are a lot ways to restrict a President from using armed forces in general but having to act through the WPR and/or AUMF limits the potential solvency mechanisms and thus good cases. It also gives the negative stable ground to say that WPR is bad/AUMF is good and have specific counterplans and disads to engaging in the process (see Turner evidence on page 71 of Topic Paper & Kahn on pages 74-5 for examples). That way, teams couldnt, for example, just ratify the CTBT and claim they are limiting Presidential Powers. It gets to the heart of the debate without exploding limits. I included AUMF because I think an aff should be able to repeal authorizations Congress has given them and part of the impetus for the topic. Also, since AUMF is terrorism specific, not including it seems to limit out cases that deal with drone strikes in Pakistan, for example. The WPR says Obama has to give notification of any combat operation but only needs authorization if it exceeds 60 days of continuous fighting. Thus, including both the WPR and AUMF gives access to the war powers debate in general and certain aspects of the war on terror in particular. See Hayden evidence on page 18 of the Topic Paper for an example. It is potentially problematic to allow repeal the AUMF and statutory restriction so some work might need to be done there. The problem is the AUMF is too permissive and the WPR is too weak, assuming an aff point of view, so it seems that the aff should be able to access both, even if the verb goes in different directions. To be clear, the list does not include things like giving WPR more teeth or changing the WPR clock, etc. Thats because these should all be solvency mechanisms not what we specifically list to debate. There are several ways to change the WPR. For examples, please see page 16 of the original Topic Paper. I included through to open up the possibility for some Court affs. Assuming for a moment that statutory restrictions allow for Court affs, or the topic just says restrictions, there is literature saying that the courts have ignored the WPR. The Court could, theoretically, restrict the President through the WPR by ruling on certain definitions or cases, for example. If Courts are not your fancy, then just saying United States Congress as the actor or finding a limiting term, like possibly statutory restrictions could limit it.

I included consult Congress because of things like covert missions which obviously dont want to get leaked but Congress should be notified to determine if it is worthy. There is, however, evidence on both consult and authorization depending on the duration and nature of the combat operations. These wordings, in my opinion, include: Use remotely deployed weapons systems: drones, cyberwar, cruise missiles, nukes? Other weapons? Deploy armed forces in combat operations without Congressional consultation or approval: UN peacekeeping, NATO missions, pre-emption, covert operations (thats why it says consultation), other weapons? Civilians in combat operations in combat operations without Congressional consultation or approval: CIA, military contractors, covert operations Does not include: Wiretapping, detention, any small CiC cases: yarmulkes, etc.

Specific areas advocated in the Topic Paper: Drones: The Topic Paper largely talks about drones in the context of AUMF but there is also evidence about drones in the context of the WPR. The bottom of the Pearlstein evidence on page 23 of the Topic Paper talks about it. (also see the Hostilities work done as part of the list group). Cyberwar: The evidence provided in the Topic Paper is about the WPR specifically. Other evidence supports this (see the Hostilities work done as part of the list group). Indefinite Detention: Arguably a CiC power, not a war power (see Stephen Heidts memorandum). Its possible to be included since the lines are blurred but I opted to keep it out for simplicitys sake. Warrantless Wiretapping: Pretty much the same as Indefinite Detention. Covert Operations: There are questions about when and should Congress should be consulted on covert ops given the WPR. The AUMF obviously complicates this debate. This is why I advocate including both and having consultation with Congress. Approval of UN/NATO action: These cases are explicitly about the applicability of the WPR so they would be included. Preemption: Havent done enough research on it but theoretically it would apply under the WPR. Bush did get Congressional authorization for the war but there is a question of how much disclosure was necessary. Not in the Topic Paper, should be debated: Civilians in combat operations: The covert stuff overlaps with this a little but the CIA and military contractors blur the lines between military and civilians. The WPR only says armed forces which theoretically allows a President to deploy civilians in combat operations without notifying Congress. So while the covert stuff is pretty much AUMF-terrorism based, there is a separate debate about civilians in

combat operations as it applies to the WPR. Its unclear whether civilians applies to the CIA or not as they are government employees. Not in the Topic Paper, questionable: Nukes: No one wants a full retread of the last nuclear weapons topic, however, I dont think one can write a resolution that tries to incorporate war powers without also including nuclear weapons to some degree. As was mentioned before, the idea is that by including the WPR/AUMF there is some contextualization needed for the affirmative to run a case. You could always write troops instead of armed forces if that is a concern but the remote weapons might still draw it in. At the end of the day, there will probably be weapons cases BUT they should have evidence that they need to be included in the WPR or eliminated from the AUMF in order to be run. Domestic: Richard Min did some interesting research about the use of Presidential war powers to justify domestic law enforcement, such as the war on drugs. This arguably is topical given the above resolutions, however if people feel it should be included specifically then it can be added. Thats the beauty of the list. Same goes with wiretapping & detention.

Conclusion: I have a Goldilocks fear. I dont want to make the topic too small but I dont want it to be too large. I understand that people differ on what that even means, but at a minimum, I like diversity in arguments and a think this resolution allows for that. However, if there are fears of too many affs or too little then I respect that and would love to hear your comments/concerns. Thanks for reading.