The State Department’s top legal adviser clashed with senators Tuesday over the Obama administration’s legal reasoning for why it does not need congressional authorization to conduct military operations in Libya.
“There is no good reason why President Obama has failed to seek congressional authorization to go to war in Libya,” said Senate Foreign Relations ranking member Richard Lugar, R-Ind., adding that he believes the U.S. military is intervening in a civil war in the North African country.
State Department legal adviser Harold Hongju Koh testified before the panel, offering a nuanced legal argument for why the administration has not violated the 1973 War Powers Resolution in deploying U.S. military forces in Libya as part of a NATO-led mission to defeat the forces of strongman Muammar el-Qaddafi.
The Foreign Relations panel is expected to debate and vote on competing resolutions later Tuesday on whether to authorize the use of military force in Libya.
The War Powers Resolution requires a president to get congressional authorization within 60 days to use U.S. armed forces in hostile situations, or terminate those operations.
Koh offered the most descriptive legal analysis to date explaining the role of the U.S. military in Libya, saying U.S. forces are playing “a supporting role within a NATO-led, Security Council-authorized, civilian-protection mission that’s limited.”
Most senators on the panel disputed Koh’s analysis. Sen. Bob Corker, R-Tenn., blasted Koh for offering what amounted to a “narrow” and “cute” argument.
“I think you’ve undermined the credibility of this administration; I think you’ve undermined the integrity of the War Powers Act; and I think by taking this very narrow approach you’ve done a great disservice to our country,” Corker said.
According to Koh, the administration does not need congressional authorization because the military operation in Libya is constrained in four distinct ways: it is limited in mission, there is limited risk to U.S. forces, the risk of escalation is limited, and the choice of military assets being used is limited.
He said that the U.S. military has only flown a quarter of the overall number of sorties in Libya to date and only 10 percent of sorties that are firing missiles. He said the total number of munitions dropped in Libya to date is less than 1 percent of those dropped in military operations in Kosovo in the late 1990s.
“All we are simply saying is that when the mission is limited, the risk of escalation is limited, the threat to troops is limited due to no ground troops, and when the tools being used are extremely limited, that doesn’t trigger the 60-day clock,” Koh argued. “If any of those elements are not present, then what I said does not necessarily apply. You have to redo the analysis.”
Koh acknowledged, however, that it may be time to rewrite the War Powers Resolution given the development of technology—such as unmanned drones—that allows the U.S. military to conduct operations from a distance and without putting troops at risk.
Regardless, senators took aim at Koh’s analysis. “The fact that we are leaving most of the shooting to other countries does not mean that the United States is not involved in acts of war,” Lugar said. “If the United States encountered persons performing similar activities in support of al-Qaida or Taliban operations, we certainly would deem them to be participating in hostilities against us.”
Corker agreed with Lugar. He said Koh’s legal reasoning could be used to argue that dropping a nuclear bomb in Libya would not constitute hostilities under the War Powers Resolution.
Sen. Jim Webb, D-Va., also weighed in, saying the United States is providing two-thirds of all troops to support Libya operations. He added there is the potential for escalation of the conflict, saying he believes the U.S. military is involved in hostilities.
Only Senate Foreign Relations Chairman John Kerry, D-Mass., offered the administration support. “In Libya today, no American is being shot, no American troops are on the ground, and we’re not going to put them there,” Kerry said. Kerry pleaded for senators to pass a resolution authorizing U.S. military operations.
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