Senate Panel Backs Mission in Libya Despite Its Dubious Legality

By Conor Friedersdorf

The vote came after the State Department's top lawyer testified that the president is following the law

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Days after the House rejected a measure to approve the war in Libya, the Senate Foreign Relations Committee decided Tuesday that the American effort there warrants its conditional cooperation. "The resolution would limit involvement to one year while calling for a ban of American ground forces except for search and rescue operations or to protect government officials," AP reports. "The full Senate is expected to consider the resolution the week of July 11." 

The vote came hours after an Obama Administration official testified before the committee that the president has so far behaved legally by continuing operations without Congressional approval. Since the top lawyers at the Pentagon and the Office of Legal Counsel believe that the Obama Administration is in fact breaking the law in Libya, it fell to Harold Koh, the State Department's top attorney, to make the White House's ultimately unpersuasive case.

His written testimony is here

"From the start, the Administration made clear its commitment to acting consistently with both the Constitution and the War Powers Resolution," Koh states. "The President submitted a report to Congress, consistent with the War Powers Resolution, within 48 hours of the commencement of operations in Libya."

Here is what the War Powers Resolution says:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

In other words, informing Congress within 48 hours of bombing Libya was insufficient to meet Obama's commitments under the law, because there was neither a declaration of war nor statutory authorization nor a national emergency created by an attack on the United States or its armed forces.

It is thus established that Obama broke the law. The rest of this post concerns whether he broke more than one of its provisions.

Says Koh:

The legal debate has focused on the Resolution's 60-day clock, which directs the President -- absent express Congressional authorization (or the applicability of other limited exceptions) and following an initial 48-hour reporting period -- to remove United States Armed Forces within 60 days from "hostilities" or "situations where imminent involvement in hostilities is clearly indicated by the circumstances."  But as virtually every lawyer recognizes, the operative term, "hostilities," is an ambiguous standard, which is nowhere defined in the statute.

Lawyers at the Pentagon and Office of Legal Counsel found it sufficiently clear to conclude that Obama is engaged in "hostilities" for the purposes of the act. Perhaps that is because the section of the law that lays out the president's reporting obligations states that they are triggered in the following circumstances:

...in any case in which United States Armed Forces are introduced-- (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

Says Koh:

Because the War Powers Resolution represented a broad compromise between competing views on the proper division of constitutional authorities, the question whether a particular set of facts constitutes "hostilities" for purposes of the Resolution has been determined more by inter-branch practice than by a narrow parsing of dictionary definitions. Both branches have recognized that different situations may call for different responses, and that an overly mechanical reading of the statute could lead to unintended automatic cutoffs of military involvement in cases where more flexibility is required.

Did the War Powers Resolution result from a broad compromise? Insofar as Congress overrode a presidential veto to pass it, the answer is no. And the notion that an "overly mechanical reading" could lead to "unintended automatic cutoffs" is nonsense. So long as Congress wants to affirm the president's policy, the only way for an unintended cutoff would be if the body wasn't able to hold a vote within 60 days due to some extraordinary circumstance. That clearly isn't the case in Libya. And a failure to secure Congressional approval is exactly the circumstance in which the legislators that passed the law intended for a cutoff of military involvement.

Koh then proceeds to list and expound upon four factors that suggest "the current situation does not constitute the kind of 'hostilities' envisioned by the War Powers Resolution's 60-day automatic pullout provision."

Let's run through them in order:

First, the mission is limited:  By Presidential design, U.S. forces are playing a constrained and supporting role in a NATO-led multinational civilian protection operation, which is implementing a U.N. Security Council Resolution tailored to that limited purpose.

In the beginning of the Libya operation, American pilots were fling combat missions over Libya and firing on the country. And after the U.S. handed off operations to NATO in earl April? "American warplanes have struck at Libyan air defenses about 60 times, and remotely operated drones have fired missiles at Libyan forces about 30 times, according to military officials," The New York Times reported on June 20. If the warplanes of any nation entered American airspace, striking our Air Force bases 60 times, and firing missiles at American forces 30 times, would anyone in the White House or Congress deny that nation committed an act of war against us?

Second, the exposure of our armed forces is limited:  To date, our operations have not involved U.S. casualties or a threat of significant U.S. casualties.  Nor do our current operations involve active exchanges of fire with hostile forces, and members of our military have not been involved in significant armed confrontations or sustained confrontations of any kind with hostile forces.

This assertion is complicated, though not necessarily contradicted, by the fact that U.S. forces near Libya are receiving "imminent danger pay". More importantly, nowhere in the War Powers Resolution does it so much as hint that the degree of danger faced by U.S. forces is a relevant factor. Under any conceivable meaning of hostilities, they can be one sided. If we destroyed Havana with cruise missiles, would it be a non-hostile act because no U.S. personnel were endangered?

Koh goes on:

The Congress that adopted the War Powers Resolution was principally concerned with the safety of U.S. forces, and with the risk that the President would entangle them in an overseas conflict from which they could not readily be extricated.  In this instance, the absence of U.S. ground troops, among other features of the Libya operation, significantly reduces both the risk to U.S. forces and the likelihood of a protracted entanglement that Congress may find itself practically powerless to end.

In fact, some members of Congress are already arguing that although launching this war may have been a bad idea, having done so, we've got to stick it out until Moammar Gaddafi is out of power.

Third, the risk of escalation is limited:  U.S. military operations have not involved the presence of U.S. ground troops, or any significant chance of escalation into a broader conflict characterized by a large U.S. ground presence, major casualties, sustained active combat, or expanding geographical scope.

Again, neither the involvement of U.S. ground troops nor the prospect of their introduction on a large scale -- notice Koh hedges and leaves open the possibility of a small U.S. ground presence! -- are factors that absolve a conflict from being governed by the War Powers Resolution. 

Fourth and finally, the military means we are using are limited:  This situation does not present the kind of "full military engagement with which the War Powers Resolution is primarily concerned." The violence that U.S. armed forces have directly inflicted or facilitated after the hand-off to NATO has been modest in terms of its frequency, intensity, and severity.

Another way to read that last sentence is that after the NATO hand-off, U.S. forces have continued to directly inflict and facilitate violence on Libya, which sounds an awful lot like "hostilities."

Before closing, it is worthwhile to note two things: 1) as a reminder, Obama ran afoul of the War Powers Resolution the moment American forces started attacking the country, because that law only permits initiation of hostilities absent Congressional approval during a national emergency caused by an attack on the United States; 2) prior to the Libya situation, that was also Obama's position. Shortly before he became president, the former constitutional law professor and then U.S. senator stated, "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

Obama's statement is important because, whatever one thinks of the legality of the Libya operation, he assured America that this is the kind of military operation he wouldn't wage - a fact that makes it all the more egregious that he has done so without consulting the people's representatives. The full Senate may find that the war in Libya is worth supporting anyway. If so, its members should censure Obama in addition to granting him permission to continue the operation.


Image credit: Anis Mili/Reuters

This article available online at:

http://www.theatlantic.com/politics/archive/2011/06/senate-panel-backs-mission-in-libya-despite-its-dubious-legality/241187/