[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]
DIRECTING THE SECRETARY OF STATE TO TRANSMIT TO THE HOUSE OF
REPRESENTATIVES COPIES OF ANY DOCUMENT, RECORD, MEMO, CORRESPONDENCE,
OR OTHER COMMUNICATION OF THE DEPARTMENT OF STATE, OR ANY PORTION OF
SUCH COMMUNICATION, THAT REFERS OR RELATES TO ANY CONSULTATION WITH
CONGRESS REGARDING OPERATION ODYSSEY DAWN OR MILITARY ACTIONS IN OR
AGAINST LIBYA
=======================================================================
MARKUP
BEFORE THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
ON
H. Res. 209
__________
MAY 11, 2011
__________
Serial No. 112-39
__________
Printed for the use of the Committee on Foreign Affairs
Available via the World Wide Web: http://www.foreignaffairs.house.gov/
______
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COMMITTEE ON FOREIGN AFFAIRS
ILEANA ROS-LEHTINEN, Florida, Chairman
CHRISTOPHER H. SMITH, New Jersey HOWARD L. BERMAN, California
DAN BURTON, Indiana GARY L. ACKERMAN, New York
ELTON GALLEGLY, California ENI F.H. FALEOMAVAEGA, American
DANA ROHRABACHER, California Samoa
DONALD A. MANZULLO, Illinois DONALD M. PAYNE, New Jersey
EDWARD R. ROYCE, California BRAD SHERMAN, California
STEVE CHABOT, Ohio ELIOT L. ENGEL, New York
RON PAUL, Texas GREGORY W. MEEKS, New York
MIKE PENCE, Indiana RUSS CARNAHAN, Missouri
JOE WILSON, South Carolina ALBIO SIRES, New Jersey
CONNIE MACK, Florida GERALD E. CONNOLLY, Virginia
JEFF FORTENBERRY, Nebraska THEODORE E. DEUTCH, Florida
MICHAEL T. McCAUL, Texas DENNIS CARDOZA, California
TED POE, Texas BEN CHANDLER, Kentucky
GUS M. BILIRAKIS, Florida BRIAN HIGGINS, New York
JEAN SCHMIDT, Ohio ALLYSON SCHWARTZ, Pennsylvania
BILL JOHNSON, Ohio CHRISTOPHER S. MURPHY, Connecticut
DAVID RIVERA, Florida FREDERICA WILSON, Florida
MIKE KELLY, Pennsylvania KAREN BASS, California
TIM GRIFFIN, Arkansas WILLIAM KEATING, Massachusetts
TOM MARINO, Pennsylvania DAVID CICILLINE, Rhode Island
JEFF DUNCAN, South Carolina
ANN MARIE BUERKLE, New York
RENEE ELLMERS, North Carolina
VACANT
Yleem D.S. Poblete, Staff Director
Richard J. Kessler, Democratic Staff Director
C O N T E N T S
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Page
MARKUP OF
H. Res. 209: Directing the Secretary of State to transmit to the
House of Representatives copies of any document, record, memo,
correspondence, or other communication of the Department of
State, or any portion of such communication, that refers or
relates to any consultation with Congress regarding Operation
Odyssey Dawn or military actions in or against Libya........... 2
Amendment in the nature of a substitute to H. Res. 209......... 4
APPENDIX
Markup notice.................................................... 14
Markup minutes................................................... 15
The Honorable Gerald E. Connolly, a Representative in Congress
from the Commonwealth of Virginia: Prepared statement.......... 17
Markup summary................................................... 18
DIRECTING THE SECRETARY OF STATE TO TRANSMIT TO THE HOUSE OF
REPRESENTATIVES COPIES OF ANY DOCUMENT, RECORD, MEMO, CORRESPONDENCE,
OR OTHER COMMUNICATION OF THE DEPARTMENT OF STATE, OR ANY PORTION OF
SUCH COMMUNICATION, THAT REFERS OR RELATES TO ANY CONSULTATION WITH
CONGRESS REGARDING OPERATION ODYSSEY DAWN OR MILITARY ACTIONS IN OR
AGAINST LIBYA
----------
WEDNESDAY, MAY 11, 2011
House of Representatives,
Committee on Foreign Affairs,
Washington, DC.
The committee met, pursuant to notice, at 4:40 p.m., in
room 2172, Rayburn House Office Building, Hon. Ileana Ros-
Lehtinen (chairman of the committee) presiding.
Chairman Ros-Lehtinen. The committee will come to order.
I am pleased to convene this markup meeting of the
Committee on Foreign Affairs to address a privileged resolution
of inquiry that requires prompt committee action.
Pursuant to notice, for purposes of a markup, I call up the
resolution, House Resolution 209, which directs the Secretary
of State to transmit to the House of Representatives certain
documentation relating to consultation with Congress regarding
military actions in or against Libya.
Without objection, the resolution will be considered as
read and open for amendment at any point and the amendment in
the nature of a substitute that members have before them, which
also was provided previously to your offices, will be
considered as read and as base text for purposes of amendment.
[H. Res. 209 follows:]
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[The amendment in the nature of a substitute follows:]
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Chairman Ros-Lehtinen. Without objection, to help us
economize on time this afternoon and avoid being interrupted by
votes on the floor, committee members wishing to submit
prepared statements for the markup record are given 5
additional calendar days to do so.
Before turning to the ranking member, I recognize myself to
speak on this measure.
As mentioned before, we are meeting today to mark up House
Resolution 209, a privileged motion of inquiry seeking from the
State Department certain information relating to their
notification of and consultation with Congress regarding the
recent U.S. military intervention in Libya. Resolutions of
inquiry require our committee to act within 14 legislative days
in order to maintain our legislative prerogatives.
Late last week, the House Parliamentarian notified us that,
due to unanticipated days of pro forma session, their original
May 23rd deadline filing estimate had suddenly moved to this
Friday, May 13th. Resolutions of inquiry do not create any
enforceable legal obligations and, therefore, do not provide
clear legal advantages over the oversight tools available to
this committee.
The text we are considering today incorporates minor
changes that were worked out with the resolution author and
were also included in a bipartisan amendment that the House
Armed Services Committee adopted earlier today when it
considered a substantially identical resolution of inquiry
directed to the Department of Defense.
In addition to identifying U.S. operations in Libya with
greater specificity, the amended language focuses the request
to, quote deg. ``any official document, record, memo,
correspondence, and other communication of the Department of
State.'' end quote. deg.
In light of the already robust committee oversight of
developments in Libya and U.S.-Libya policy, it is unclear how
this resolution would add to congressional understanding of
these issues. The full range of legal issues regarding U.S.
involvement in Libya, along with policy questions about U.S.
objectives in Libya, have been and will continue to be a
subject of inquiry and oversight by this committee.
Nearly 2 years in advance of these developments, the
committee had placed holds on proposed armored personnel
carrier sales to the Qadhafi regime. Our tough questions helped
to quash these sales, and we can be proud that our oversight
prevented Qadhafi from using that American technology in his
murderous campaign against Libyan civilians.
A year and a half ago, committee objections prompted the
Obama administration to back away from a proposal to give
hundreds of thousands of dollars to Qadhafi-run foundations.
Since the dramatic developments inside Libya began this spring,
our committee's oversight has included six hearings, including
our full committee hearing with Deputy Secretary of State
Steinberg within days of the congressional notification of U.S.
air strikes, a House-wide classified Members briefing
originally requested by our committee, a Members ambassadorial
roundtable, more than 10 weekly interagency staff briefings,
and 3 classified staff briefings.
I am disappointed that today's floor votes forced the
postponement of today's scheduled House-wide briefing on war-
powers issues relating to Libya, but we will reschedule that as
soon as we are able.
The committee also has been conducting exacting due
diligence regarding the administration's pre-notifications,
notifications, and requests for humanitarian and non-lethal
defense assistance, and proposals for using frozen Qadhafi
regime assets. We have been in active consultation with the
executive branch and, when necessary, placing informational
holds until we receive sufficient specificity about proposed
assistance and recipients from State and other agencies. We
want accountability down to the last bandage, and, so far, we
are receiving it.
Looking ahead, we will continue to explore other key
questions about our Libya involvement, such as: Whom are we
helping exactly in Libya? Who are these armed rebels? And who
are the Interim Transitional National Council members? What
safeguards and criteria are we using to ensure that U.S.
assistance serves U.S. national interests?
I want to assure our members that we will be pursuing these
and other issues with the same vigor that we have been
conducting our Libya oversight to date.
I want to thank the ranking member and his staff for their
cooperation in making today's prompt committee action possible.
I now recognize the ranking member, Mr. Berman, for any
remarks he may have on this measure.
Mr. Berman. Well, thank you, Madam Chairman.
And I share your sense that the President should consult
fully with Congress prior to the use of military force. This
committee's most important function is to review the use of
military force abroad.
Although I would have welcomed further congressional
consultation prior to military operations in Libya, I believe
the urgency of the situation required immediate action. As many
advocates observed, preventing a humanitarian catastrophe in
Libya was critical--or perhaps I should say, an even greater
humanitarian catastrophe in Libya was critical.
I support the amendment proposed by the chairman, and I
appreciate her efforts to limit the scope of this resolution of
inquiry.
The underlying resolution seems more calculated to force an
unprecedented disgorging of administration documents than a
thoughtful examination of congressional prerogative in
authorizing use of force. There are certainly several
outstanding questions regarding the War Powers Resolution in
the Libya context, but this resolution is the wrong way to
examine those issues. I appreciate the chairman's efforts to
address its shortcomings.
On a related note, I note the fact that the Armed Services
Committee will mark up two provisions today related to the 2001
authorization for the use of military force. One provision will
expand the authorization for the use of military force, while
the other will authorize the Secretary of Defense to undertake
cyber warfare pursuant to the AUMF of 2001.
Both of these provisions represent important efforts to
clarify the President's authority to use force. They also fall
squarely within the four corners of this committee's
jurisdiction, and for good reason: The Foreign Affairs
Committee is the best positioned to evaluate the foreign-policy
bases and, ultimately, the implications of the use of force.
The authorizations proposed, although characterized as
reaffirmations, pose numerous questions. For example, the cyber
provision would give the President authority to conduct cyber
attack missions under the 2000 AUMF. Are these offensive
missions or just defensive ones? A cyber attack mission could
be construed by a state being attacked as an act of war, which
could result in a hot conflict. There is a fine line, given the
evolving capabilities of cyber technologies, which argue for
caution in our approach.
I look forward to working with the chairman and with
Chairman McKeon of the Armed Services Committee and Ranking
Member Smith to ensure these provisions adequately incorporate
the concerns of this committee. And I intend to support the
amendment in the nature of a substitute and final passage of
it.
I yield back the balance of my time.
Chairman Ros-Lehtinen. Thank you, Mr. Berman.
Are there any other members seeking recognition on this
measure?
Mr. Rohrabacher. Yes, Madam Chair.
Chairman Ros-Lehtinen. Mr. Rohrabacher is recognized for 5
minutes.
Mr. Rohrabacher. Thank you very much, Madam Chairwoman. And
let me just note that I appreciate your leadership on this.
When we are involved in these types of activities, we are
setting precedent that is important for what we are doing right
now but also for what will be done in the future. And so we
always have to be aware of that and watch out for the
prerogatives of the legislative branch, but also, having served
in the executive branch, supportive of the prerogatives of the
executive branch along with us. This is not just a fight over
jurisdiction between the legislative and the executive branch,
but it, instead, is a constitutionally definable action that is
being taken by us as patriots trying to do what is right for
our country.
So I appreciate your leadership in this.
Let me just note this resolution is about asking about
trying to determine who these insurgents are that we are
helping down in Benghazi and who are fighting the Qadhafi
dictatorship.
Let me just note, at my office tomorrow between 3 o'clock
and 4 o'clock, the interim prime minister of the rebels will be
there and be willing to talk to anybody. His name is Mahmoud
Jibril, who is the interim prime minister for the democratic
movement in Benghazi, and would be willing to answer any
questions that we would have if we would like to ask him
directly, rather than trying to talk through the
administration.
So thank you very much. And everyone would be invited
tomorrow to my office, 3 o'clock to 4 o'clock.
Chairman Ros-Lehtinen. Thank you, Mr. Rohrabacher.
Any other members wish to be heard?
Mr. Sherman is recognized for up to 5 minutes.
Mr. Sherman. The executive branch often likes to turn
Congress into a mere advisory body: Brief us, consult with us,
ignore anything we have to say, and not acknowledge the idea
that it might involve a vote of Congress to engage in a
particular foreign policy adventure. Sometimes this is more
comfortable for us, because we avoid then having to vote on
what is a close call. And Libya is, indeed, at least for me, a
close call.
But our efforts to bring democracy to Libya should not
involve shredding the U.S. Constitution or the War Powers
Resolution or War Powers Act, which is the law of the land.
Hostilities began on March 19th. Within 48 hours, the
President filed a report. That means he has until May 21st to
have a resolution of approval from Congress or, assuming our
laws mean anything, he is supposed to begin a prompt withdrawal
to take less than 30 days.
So far, the President has not asked for authorization, nor
has any Member of Congress submitted a resolution of
disapproval. We ought to be exercising our responsibilities,
even if it is difficult to do so.
I, for one, am worried about two things. First, as Mr.
Rohrabacher points out, who are we helping? For example, why is
Mr. al-Hasidi one of the rebel commanders when he boasts of
taking actions that no doubt killed Americans in both Iraq and
Afghanistan? The second issue is, why are we being told that
this involvement costs less than $1 billion
dollars deg., which is clearly false? And why are we not using
some of the seized Qadhafi assets to pay our costs?
I am sure other members have other questions. But the big
question is, do any of our questions matter at all? If the War
Powers Act can be ignored, if the Congress is not necessary to
conduct military actions for longer than 60 days, what role do
we play?
A number of us, but all too few of us, signed a letter to
congressional bipartisan leadership, urging that the continuing
resolution contain a provision stating that no funds provided
could be spent for operations in violation of the war powers--
what I call the War Powers Act, what is officially called the
War Powers Resolution. It is a public law of this country.
Unfortunately, that provision wasn't included.
And so, in all likelihood, as we are back in our districts
talking to schoolchildren about the majesty of our democracy,
the President will carry on military operations in violation of
the War Powers Act and no one in Congress will be doing
anything to say that the law should be complied with.
So this resolution before us today is the tiniest of steps
that we could take to indicate that maybe Congress should be
involved, at least in being able to look at some of the
documents.
But our real role under the law and the Constitution is to
stand up and vote one way or the other. Should military
operations continue for more than 60 days, or should the
President be required to withdraw? And I can't say I would
relish such a vote, because it would be a difficult vote for
me. But that is the role we ought to be playing.
I yield back.
Chairman Ros-Lehtinen. Mr. Poe is recognized for 5 minutes.
Mr. Poe. Thank you, Madam Speaker.
No question about it, Muammar Qadhafi is a bad guy. But it
concerns me whether the Constitution has been followed in this
operation in Libya. It seems now the United States engages in
war in the name of humanity, which makes us the ones who decide
what countries we will drop bombs on and what countries we
decide to give a pass, like Syria.
I am, too, concerned about the War Powers Act and whether
it has been followed or not. And this proceeding we are having
today, I think, is very important so we get some answers.
Once again, it is imperative that Muammar Qadhafi be dealt
with, but I am not so sure the Constitution gives the United
States any precedent, even through the War Powers Act, when the
United States' national security is not at risk, to suddenly
pick a side in a country and help call an overthrow of a bad
government.
So I look forward to more dialogue on this issue. Congress
needs some answers. Congress should be consulted. That is our
responsibility, to make those decisions. And unilateral
operation by any administration in sending U.S. military forces
throughout the world, not complying with the War Powers Act, is
something that is important to me and something we should be
concerned about.
So, with that, I will yield back the remainder of my time.
Chairman Ros-Lehtinen. Thank you, Judge Poe.
And seeing no further baseball signals, requests for time--
oh, Mr. Payne is recognized for up to 5 minutes.
Mr. Payne. Just a continuing discussion, I guess it was
back in the Gulf of Tonkin in 1965, the whole question of the
War Powers Act. It is very interesting that the War Powers Act
gets into discussion whenever somebody is on the other side of
whatever our President has done.
We haven't declared war since, I guess, Pearl Harbor in the
1940s, actual declaration of war, declaring war, I guess, on
December the 7th against Japan and December the 8th on Germany.
So, you know, this discussion of really--and I think that it is
argued on all sides what constitutes a war, what constitutes an
action, what--you know, it is a lot of semantics. We prosecute
wars now.
You know, it is a debate, I think, that we certainly need
to keep before us. I do think certainly Congress has a very
responsible position. I am not so sure that I would consider
our intervention with NATO in Libya as declaring war and,
therefore, we need to have a vote in Congress on the war
against Libya.
So I think that I have the confidence in the Commander-in-
Chief and feel that the judgment of the Secretary of Defense
and the Secretary of State and Vice President and people with a
lot of information and a lot of knowledge. I, certainly in this
instance, I think, like I said, once and for all, we ought to
get the War Powers Act straight. But I have heard it argued
from so many different points of view during my time in
Congress.
But I think that the President waited for others to act. We
were not the ones moving out there ahead of the action. And so
I, therefore, certainly would oppose this resolution.
Chairman Ros-Lehtinen. Mr. Manzullo is recognized.
Mr. Manzullo. My question goes to the extent to which these
documents will bring forth information. What we have is a
situation where Congress has been ignored and deference has
been paid to the African Union, the Arab League, and the United
Nations. This body has not had the opportunity to vote on the
intervention in Libya.
Then, about 3 weeks ago, there was an announcement that $20
million in non-lethal aid was being given to the Libyans under
the guise of humanitarian aid, but, the very next day, the
drones were sent into Libya. Now, this past week, we have a
high-ranking official from Libya saying that they are going to
sell the $20 million in non-lethal aid that was given and use
that to buy weapons for Qadhafi and the government troops.
This is a circle that doesn't end. The longer we stay out
of exercising our constitutional powers to either declare war
on Libya or get the heck out, the worse it is going to get. My
question is whether or not this issue of the sale of the non-
lethal aid by the Egyptian Government, will that be uncovered
in some of these documents? How far does the request for these
documents go?
Chairman Ros-Lehtinen. Mr. Manzullo, would you yield?
Mr. Manzullo. Of course.
Chairman Ros-Lehtinen. We do have a classified briefing
that is going to be on Pakistan on Thursday, but I think that
the folks who will be there, may be able to answer your
question related to Libya, as well----
Mr. Manzullo. Okay.
Chairman Ros-Lehtinen [continuing]. If you would grace us
with your presence.
Mr. Manzullo. Well, usually, if it is classified, they
don't say anything that you don't see the morning before in
both newspapers. But if you could ask those people to give us
some fresh information----
Chairman Ros-Lehtinen. We sure will. If the gentleman would
yield----
Mr. Manzullo. This question needs to be asked. What has
happened to $20 million in taxpayers' money that was supposed
to be non-lethal aid? Now Libya says they are going to sell it
and use it to buy bullets with the help of Qadhafi's regime.
Maybe I am missing something, but I think the rest of the
members of our committee share the same angst. My question is,
when the request for documents are presented, are there
inquiries saying, ``Do you have any documents related to''--and
then we ask the question in there? Is that how that works on
the official inquiry?
Chairman Ros-Lehtinen. If the gentleman would yield?
Mr. Manzullo. Of course.
Chairman Ros-Lehtinen. We can provide you the information
that we have on the expenditure of the funds up to date. We
will be glad to give you that information, the information that
we have----
Mr. Manzullo. Okay, but----
Chairman Ros-Lehtinen [continuing]. And we will see if that
satisfies you.
Mr. Manzullo. But I am sure you will be asking for further
documents----
Chairman Ros-Lehtinen. Absolutely, we will.
Mr. Manzullo. Also, as to whether or not it has been re-
gifted.
Chairman Ros-Lehtinen. If the gentleman will yield, we will
continue to ask----
Mr. Manzullo. Thank you.
Chairman Ros-Lehtinen [continuing]. And ask and ask.
Mr. Manzullo. Thank you.
Mr. Berman. Not that there is anything wrong with that.
Mr. Manzullo. I yield back.
Chairman Ros-Lehtinen. Thank you.
Seeing no further requests for time on this measure and no
further amendments, and seeing that a reporting quorum is
present, I move that the measure be reported favorably to the
House, as amended.
All those in favor, say, ``Aye.''
All opposed, ``No.''
The ayes have it, and the motion to report favorably is
agreed to.
Without objection, the bill, as amended, will be reported
as a single amendment in the nature of a substitute, and the
staff is directed to make technical and conforming changes.
This concludes our business for today. And I would like to
thank all of the members and their staff for their effort and
cooperation to make this prompt action possible.
And a reminder that we will set up the war-powers briefing
when we come back.
And, with that, the committee is adjourned.
[Whereupon, at 5:05 p.m., the committee was adjourned.]
A P P E N D I X
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