War Powers Act Does Not Apply to Libya, Obama Argues
June 15, 2011
POSTED BY ~Q~ THEWATCHTOWERS.COM
WASHINGTON — The White House is telling Congress that President Obama has the legal authority to continue American participation in the NATO-led air war in Libya, even though lawmakers have not authorized it.
In a broader package of materials the Obama administration is sending to Congress on Wednesday defending its Libya policy, the White House, for the first time, offers lawmakers and the public an argument for why Mr. Obama has not been violating the War Powers Resolution since May 20.
On that day, the Vietnam-era law’s 60-day deadline for terminating unauthorized hostilities appeared to pass. But the White House argued that the activities of United States military forces in Libya do not amount to full-blown “hostilities” at the level necessary to involve the section of the War Powers Resolution that imposes the deadline.
“We are acting lawfully,” said Harold Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with White House Counsel Robert Bauer.
The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes — although unmanned drones operated by the United States periodically fire missiles as well.
They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians.
“We are not saying the president can take the country into war on his own,” Mr. Koh said. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”
The administration unveiled its argument at a time when members of Congress have shown increasing skepticism about the Libya operation. On June 3, the House of Representatives passed a resolution declaring that the mission had not been authorized.
On Wednesday, the Speaker of the House, John Boehner, Republican of Ohio, sent Mr. Obama a letter pointing out that even under a flexible interpretation of War Powers Resolution that would allow hostilities to last 90 days without Congressional authorization, Mr. Obama was out of time. Mr. Boehner demanded a legal explanation by Friday.
“Given the mission you have ordered to the U.S. Armed Forces with respect to Libya and the text of the War Powers Resolution, the House is left to conclude that you have made one of two determinations: either you have concluded the War Powers Resolution does not apply to the mission in Libya, or you have determined the War Powers Resolution is contrary to the Constitution,” Mr. Boehner wrote. “The House, and the American people whom we represent, deserve to know the determination you have made.”
It remains to be seen whether majorities in Congress will accept the administration’s argument, defusing the confrontation, or whether the White House’s response will instead fuel greater criticism. Either way, because the War Powers Resolution does not include a definition of “hostilities” and the Supreme Court has never ruled on the issue, the legal debate is likely to be resolved politically, said Rick Pildes, a New York University law professor.
“There is no clear legal answer,” he said. “The president is taking a position, so the question is whether Congress accepts that position, or doesn’t accept that position and wants to insist that the operation can’t continue without affirmative authorization from Congress.”