Senators turn up heat over legality of Libya action

Washington Bureau

The Obama administration is facing tough questions in the Senate over its decision not to seek congressional authorization for its participation in the NATO military mission in Libya.

Members of the Senate Foreign Relations Committee on Tuesday complained that the White House’s position had made Congress “irrelevant,” unnecessarily antagonized lawmakers and opened a Pandora’s box of debate over the definition of war.

At the heart of the debate is the 1973 War Powers Act, which requires the president to seek congressional approval within 60 days of engaging in military hostilities or discontinue them. Obama has said he would welcome such approval but he doesn’t believe the act applies to the Libya conflict.


“When U.S. forces engage in a limited military mission that involves limited exposure for U.S. troops and limited risk of serious escalation and employs limited military means, we are not in hostilities of the kind envisioned by the War Powers Resolution,” State Department legal advisor Harold Koh told the committee.

Several Republicans on the committee pointed to an apparent contradiction between that definition and the position on use of military force that Obama took as a presidential candidate.

Quoting from a candidate questionnaire, Republicans noted that Obama believed, “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.”

“Is that still his position?,” Sen. Jim Risch (R-Idaho) asked Koh.

“I would be very surprised if that’s his position,” Koh said, adding that it was “overly limited.” “I don’t think that’s legally correct.”

The discussion took a surprisingly personal turn when Sen. Bob Corker (R-Tenn.) called Koh’s argument “really pretty incredible,” and noted that U.S. planes and drones are engaged in the mission.

Corker declared that he had opposed Koh’s appointment and accused him of elevating international law over U.S. law.


“I would guess at night, however people of your category give high-fives, you’re talking to other academics about this cute argument that has been utilized,” Corker said. “But I would say to you that 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.”

Coming to Koh’s defense, Sen. John F. Kerry, (D-Mass.) the committee chairman, noted that the president had communicated with Congress within the 60-day window. Kerry expressed support for a resolution authorizing the war.

“Don’t blame the president. The Congress of the United States didn’t do it. And let me tell you why, bluntly: because both leaders, in both houses, were unwilling at that point in time to do it,” Kerry said. “Let’s be honest about this.”

The committee was expected to vote later Tuesday on whether to advance a resolution that would authorize U.S. involvement in Libya for one year. Senate leaders say they believe the measure will pass the Senate, although it was already rejected by the House.

That’s in part because the mission itself has considerable support among lawmakers, even if the president’s handling of it does not.

Corker asked Koh if the White House was happy with the path it had chosen.

“Are you glad that you basically created an issue where no issue had to exist by taking this narrowly defined route and basically sticking a stick in the eye of Congress?” he asked.


“If you felt that a stick was stuck, that was not the goal,” Koh replied.

Democratic Sen. Jim Webb of Virginia, however, also dismissed the administration’s attempts to reach out to Congress as beside the point. At issue, he said, was the “contorted legal definition of hostilities” and the president’s “very vague standard” for using military force.