[Senate Hearing 112-89]
[From the U.S. Government Printing Office]
S. Hrg. 112-89
LIBYA AND WAR POWERS
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HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JUNE 28, 2011
__________
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COMMITTEE ON FOREIGN RELATIONS
JOHN F. KERRY, Massachusetts, Chairman
BARBARA BOXER, California RICHARD G. LUGAR, Indiana
ROBERT MENENDEZ, New Jersey BOB CORKER, Tennessee
BENJAMIN L. CARDIN, Maryland JAMES E. RISCH, Idaho
ROBERT P. CASEY, Jr., Pennsylvania MARCO RUBIO, Florida
JIM WEBB, Virginia JAMES M. INHOFE, Oklahoma
JEANNE SHAHEEN, New Hampshire JIM DeMINT, South Carolina
CHRISTOPHER A. COONS, Delaware JOHNNY ISAKSON, Georgia
RICHARD J. DURBIN, Illinois JOHN BARRASSO, Wyoming
TOM UDALL, New Mexico MIKE LEE, Utah
Frank G. Lowenstein, Staff Director
Kenneth A. Myers, Jr., Republican Staff Director
(ii)
C O N T E N T S
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Page
Fisher, Louis, Scholar in Residence, The Constitution Project,
Silver Spring, MD.............................................. 40
Prepared statement........................................... 42
Kerry, Hon. John F., U.S. Senator from Massachusetts, opening
statement...................................................... 1
Koh, Hon. Harold, Legal Adviser, U.S. Department of State,
Washington, DC................................................. 7
Prepared statement........................................... 11
Responses to questions submitted for the record by Senator
Richard G. Lugar........................................... 53
Responses to questions submitted for the record by Senator
James E. Risch............................................. 58
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening
statement...................................................... 4
Spiro, Peter, Charles R. Weiner Professor of Law, Temple
University, Easley School of Law, Philadelphia, PA............. 48
Prepared statement........................................... 50
(iii)
LIBYA AND WAR POWERS
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TUESDAY, JUNE 28, 2011
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 10:07 a.m., in
room SD-419, Dirksen Senate Office Building, Hon. John F. Kerry
(chairman of the committee) presiding.
Present: Senators Kerry, Casey, Webb, Shaheen, Coons,
Lugar, Corker, Risch, Isakson, Barrasso, and Lee.
OPENING STATEMENT OF HON. JOHN F. KERRY,
U.S. SENATOR FROM MASSACHUSETTS
The Chairman. The hearing will come to order.
Thank you very much for being here this morning. I
apologize for starting a few minutes late.
We are here this morning to further examine an issue that
we have been debating since the War Powers Resolution was
passed. I think this is a debate of decades now since the
1970s, and certainly it has been debated over the course of the
last weeks with respect to the War Powers Resolution and its
role in America's use of force in Libya.
I want to thank all of my colleagues for the very
constructive manner in which we have conducted that discussion
over these past weeks, and this afternoon the committee will
meet again--and I would ask all of the members who are here, as
you run into other members, if we can begin that meeting
punctually. I think there is a fair amount of business and it
is obviously important business. We want to try to consider it
as expeditiously as possible, and that is with respect to the
proposed resolution regarding the limited operations in support
of the NATO mission in Libya.
It is my personal firm belief that America's values and
interests compelled us to join other nations in establishing
the no-fly zone over Libya. By keeping Qadhafi's most potent
weapons out of the fight, I am positively convinced--and I
would reiterate that 2 days ago Senator McCain and I were in
Cairo meeting with General Tantawi and others, and they
affirmed the conviction that the actions of the United Nations
with respect to the no-fly zone, indeed, saved many thousands
of people from being massacred by Qadhafi. There is no question
in my mind about that.
We also sent a message about something that matters to the
American people as a matter of our values and that is about
whether or not leaders should be permitted willy-nilly to turn
their armies on their own citizens, the citizens they are
supposed to serve and protect.
I have made clear my belief that the 60-day restriction
contained in the War Powers Resolution does not apply in this
situation, particularly since we handed the operations over to
NATO. But some people, obviously, can draw different
interpretations and will. And we will have a good discussion
about that today.
It is important, in my judgment, to remember that the War
Powers Resolution was a direct reaction to a particular kind of
a war, to a particular set of events, the Vietnam war, which at
that time was the longest conflict in our history and which
resulted, without any declaration in war, in the loss of over
58,000 American lives, spanning three administrations. And
during those three administrations, Congress never declared war
or, I might add, authorized it. They funded but there was no
formal authorization.
Now, understandably Congress after that wanted to ensure
that in the future it would have an opportunity to assert its
constitutional prerogatives, which I do agree with and do
believe in when America sends its soldiers abroad.
But our involvement in Libya is, obviously, clearly
different from our fight in Vietnam. It is a very limited
operation, and the War Powers Resolution applies to the use of
armed forces in--and here I quote--``hostilities or situations
where imminent involvement in hostilities is clearly indicated
by the circumstances,'' referring to American Armed Forces.
But for 40 years, Presidents have taken the view that this
language does not include every single military operation.
Presidents from both parties have undertaken military
operations without express authorization from Congress. I will
emphasize, particularly for my friends, that does not make it
right, and I am not suggesting that it does. It still begs the
analysis each time of whether or not it fits a particular
situation. But certainly Panama, Grenada, Haiti, Bosnia,
Kosovo, Lebanon--I mean, the list is long where Presidents have
deemed it necessary to take a particular action. In some cases,
those actions ended in less than 60 days, but in a number of
them and some of the most recent and prominent ones, they went
well beyond the 60 days. In fact, on one occasion, I believe
Lebanon, Congress actually authorized action a year later.
We have never amended the War Powers Resolution, and we
have never amended the resolution in terms of this particular
authorization that came through the United Nations.
The Ford administration, for example, defined
``hostilities'' only as those situations where U.S. troops were
exchanging fire with hostile forces. And subsequent
administrations, Republican and Democrat alike, built on that
interpretation. But in Libya today no American is being shot
at. No American troops are on the ground, and we are not going
to put them there.
It is true, of course, that the War Powers Resolution was
not drafted with drones in mind. As our military technology
becomes more and more advanced, it may well be that the
language that I just read needs further clarification. Maybe it
is up to us now to redefine it in the context of this more
modern and changed warfare and threat.
I certainly recognize that there can be very reasonable
differences of opinion on this point as it applies to Libya
today. So I am glad we are having this hearing. I think it is
important.
Many of us have met with members of the Libyan opposition,
and I know Senators are eager to get to know them better and to
learn about their plans and goals. I see this morning we are
joined here by Ali Aujali. He was Libya's Ambassador to the
United States but he resigned during the uprising and is now
the diplomatic representative of the Transitional National
Council which only recently Germany moved, Angela Merkel, moved
to actually recognize.
Like Ambassador Aujali, we would all like to see a brighter
future for Libya, and that is why, when it comes to America's
involvement, we need to look beyond the definition of
hostilities to the bigger picture. A Senate resolution
authorizing the limited use of force in Libya will, I think,
show the world, in particular Muammar Qadhafi, at a time when
most people make a judgment that the noose is tightening, the
vice is squeezing, the opposition is advancing, the regime is
under enormous pressure, that Congress and the President are
committed to this critical endeavor. The United States is
always strongest when we speak with one strong voice on foreign
policy, and that is why I hope this afternoon we could find our
way to an agreement on a bipartisan resolution.
Endorsing our supporting role in this conflict, also sends
a message to our allies and NATO. Secretary Gates, prior to
departing in recent days, made a very strong speech about NATO,
the need for NATO to do more. The fact is NATO is doing more in
this effort, and they are in the lead on this effort. And we
have asked in the past for the alliance to take the lead in
many conflicts, and too often they have declined. In this case,
they have stepped up, and I believe that for us to, all of a
sudden, turn on our own words and hopes and urgings of the last
years and pull the rug out from under them would have far-
reaching consequences.
With that said, it is a great pleasure for me to welcome
here Harold Koh, the State Department's Legal Adviser. He is an
extremely distinguished scholar of constitutional law and
international law. He has a long career of service in the
Government, as well as in academia.
We had also, I might add, invited some witnesses from the
Pentagon and the Department of Justice to testify this morning,
but they declined to appear.
On the second panel, we have two witnesses. Louis Fisher is
Scholar in Residence at The Constitution Project, and he
previously worked for 4 decades at the Library of Congress as
the senior specialist in separation of powers and as a
specialist in constitutional law. And Professor Spiro is the
Charles R. Weiner Professor of Law at Temple University, and he
has served in the State Department and on the National Security
Council staff and has written extensively on foreign relations
law of the United States.
So we appreciate all of our witnesses taking time to be
here today.
Senator Lugar.
OPENING STATEMENT OF HON. RICHARD G. LUGAR,
U.S. SENATOR FROM INDIANA
Senator Lugar. Well, thank you very much, Mr. Chairman, for
calling this meeting to consider the legal and constitutional
basis for ongoing United States military operations in Libya.
The President declined to seek congressional authorization
before initiating hostilities. Subsequently he has carried them
out for more than 3 months without seeking or receiving
congressional authorization.
This state of affairs is at odds with the Constitution, and
it is at odds with the President's own pronouncements on war
powers during his Presidential candidacy. For example, in
December 2007, he responded to a Boston Globe question by
saying ``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.''
Before our discussion turns to constitutional and legal
issues, I believe it is important to make a more fundamental
point. Even if one believes the President somehow had the legal
authority to initiate and continue United States military
operations in Libya, it does not mean that going to war without
Congress was either wise or helpful to the operation.
The vast majority of Members of Congress, constitutional
scholars, and military authorities would endorse the view that
Presidents should seek congressional authorization for war when
circumstances allow. There is a near uniformity of opinion that
the chances for success in a war are enhanced by the unity,
clarity of mission, and constitutional certainty that such an
authorization and debate provide.
There was no good reason why President Obama should have
failed to seek congressional authorization to go to war in
Libya. A few excuses have been offered, ranging from an
impending congressional recess, to the authority provided by a
U.N. Security Council resolution. But these excuses do not
justify the President's lack of constitutional discipline.
Twelve days before the United States launched hostilities, I
called for the President to seek a declaration of war before
taking military action. The Arab League resolution, which is
cited as a key event in calculations on the war, was passed a
full week before we started launching cruise missiles. There
was time to seek congressional approval, and Congress would
have debated a war resolution if the President had presented
one.
This debate would not have been easy. But Presidents should
not be able to avoid constitutional responsibilities merely
because engaging the people's representatives is inconvenient
or uncertain. If the outcome of a congressional vote on war is
in doubt, it is all the more reason why a President should seek
a debate. If he does not, he is taking the extraordinary
position that his plans for war are too important to be upset
by a disapproving vote in Congress.
The Founders believed that Presidents alone should not be
trusted with warmaking authority, and they constructed checks
against executive unilateralism. James Madison, in a 1797
letter to Thomas Jefferson, stated ``The Constitution supposes,
what the History of all Governments demonstrates, that the
Executive is the branch of power most interested in war, and
most prone to it. It has accordingly with studied care, vested
the question of war in the legislature.''
Clearly, there are circumstances under which a President
might be justified in employing military force without
congressional authorization. But as Senator Webb has pointed
out systematically, none of the reasons apply to the Libyan
case. Our country was not attacked or threatened with an
attack. We were not obligated under a treaty to defend the
Libyan people. We were not rescuing Americans or launching a
one-time punitive retaliation. Nor did the operation require
surprise that would have made a public debate impractical.
In this case, President Obama made a deliberate decision
not to seek a congressional authorization of his action, either
before it commenced or during the last 3 months. This was a
fundamental failure of leadership that placed expedience above
constitutional responsibility.
Now, some will say that President Obama is not the first
President to employ American forces overseas in controversial
circumstances without a congressional authorization. But saying
that Presidents have exceeded their constitutional authority
before is little comfort. Moreover, the highly dubious
arguments offered by the Obama administration for not needing
congressional approval break new ground in justifying a
unilateral Presidential decision to use force. The accrual of
even more warmaking authority in the hands of the Executive is
not in our country's best interest, especially at a time when
our Nation is deeply in debt and our military is heavily
committed overseas.
At the outset of this conflict, the President asserted that
U.S. military operations in Libya would be ``limited in their
nature, duration, and scope.'' On this basis, the
administration asserted that the actions did not require a
declaration of war. Three months later, these assurances ring
hollow. American and coalition military activities have
expanded to an all but declared campaign to drive Qadhafi from
power. The administration is unable to specify any applicable
limits to the duration of the operations. And the scope has
grown from efforts to protect civilians under imminent threat
to obliterating Libya's military arsenal, command and control
structure, and leadership apparatus.
Most recently, the administration has sought to avoid its
obligations under the War Powers Resolution by making the
incredible assertion that U.S. military operations in Libya do
not constitute hostilities. Even some prominent supporters of
the war have refused to accept this claim.
The administration's own description of the operations in
Libya underscores the fallacy of this position. United States
war planes have reportedly struck Libya air defenses some 60
times since NATO assumed the lead role in the Libya campaign.
Predator drones reportedly have fired missiles on some 30
occasions. Most significantly, the broader range of airstrikes
being carried out by other NATO forces depend on the essential
support functions provided by the United States.
The War Powers Resolution required the President to
terminate the introduction of U.S. forces into hostilities in
Libya on May 20, 60 days after he notified Congress of the
commencement of the operation. The administration declined to
offer any explanation of its view that United States Forces
were not engaged in hostilities in Libya until nearly a month
later on June 15. Even at that point, the administration's
explanation was limited to four perfunctory sentences in a 32-
page report on the Libyan operations.
Administration analysis focuses on the question of whether
U.S. casualties are likely to occur, thereby minimizing other
considerations relevant to the use of force. If this definition
of hostilities were accepted, Presidents would have significant
scope to conduct warfare through remote means such as missiles
and drones. It would deny Congress a say in other questions
implicated in decisions to go to war, including the war's
impact on U.S. strategic interests, on our relations with other
countries, and on our ability to meet competing national
security priorities.
The administration's report also implies that because
allied nations are flying most of the missions over Libya, the
United States operations are not significant enough to require
congressional authorization. This characterization underplays
the centrality of the United States contributions to the NATO
operations in Libya. We are contributing 70 percent of the
coalition's intelligence capabilities and the majority of its
refueling assets. The fact that we are leaving most of the
shooting to other countries does not mean the United States is
not involved in acts of war. If the United States encountered
persons performing similar activities in support of al-Qaeda or
Taliban operations, we certainly would deem them to be
participating in hostilities against us. Moreover, the language
of the War Powers Resolution clearly encompasses the kinds of
operations U.S. military forces are performing in support of
other NATO countries.
These concerns are compounded by indications that the
administration's legal position was the result of a disputed
decision process. According to press reports, the President
made the decision to adopt this position without the Department
of Justice having the opportunity to develop a unified legal
opinion. It is regrettable that the administration has refused
our requests to make witnesses from the Departments of Defense
and Justice available for today's hearing.
Finally, one would expect the administration to be fully
forthcoming on consultations about Libya to compensate, in some
measure, for the lack of congressional authorization for the
war. Although consultations in no way substitute for formal
authorization, a view corroborated in this legal scholarship
today of Mr. Koh, they serve a vital purpose in unifying the
Government and providing Congress with a basis for
decisionmaking on the war. For the most part, for example, the
Clinton administration and President Clinton himself consulted
meaningfully with Congress during the United States
intervention in the Balkans.
In sharp contrast, the Obama administration's efforts to
consult with Congress have been perfunctory, incomplete, and
dismissive of reasonable requests. This committee alone has
experienced at least three occasions when briefings were
canceled or relevant witnesses were denied without explanation.
As Senator Corker has pointed out, very basic questions about
the operation have gone unanswered. Deputy Secretary of State
Steinberg declined to address certain questions on the basis
they could only be answered by the military, and yet the
administration has refused to provide the committee with
Defense Department witnesses. This inexplicable behavior
contributes to the damage that the Libya precedent might create
in the future.
I do not doubt that President Obama elected to launch this
war because of altruistic impulses. But that does not make the
United States intervention in Libya any less of a war of
election. Nor does the fig leaf that American pilots are flying
a minority of the missions within the coalition justify the
contention we are not engaged in hostilities, especially since
United States participation enables most of the operations
underway.
The President does not have the authority to substitute his
judgment for constitutional process when there is no emergency
that threatens the United States and our vital interests. The
world is full of examples of local and regional violence, to
which the United States military could be applied for some
altruistic purpose. Under the Constitution, the Congress is
vested with the authority to determine which, if any, of these
circumstances justify the consequences of American military
intervention.
I thank the chairman for the opportunity to make this
statement.
The Chairman. Thank you very much.
So there, legal counsel, there you have it, sir. The stage
is set, two differing views reflecting over 50 years of service
on this committee, and we are still not sure what the answer
is. So your task this morning is an interesting one, and I
think we will not only have a good dialogue, but maybe it will
be fun. Have at it. You are on.
STATEMENT OF HON. HAROLD KOH, LEGAL ADVISER, U.S. DEPARTMENT OF
STATE, WASHINGTON, DC
Mr. Koh. Thank you, Mr. Chairman, Senator Lugar, members of
the committee, for this important hearing. It is good to be
back before you. Like past legal advisers, I am honored to
appear to explain the administration's legal position on the
war powers. I have submitted detailed testimony, which you have
before you, which reviews the brutality visited by Qadhafi on
the people of Libya and the urgent but restrained steps this
administration has taken to stop it as part of a supporting
role within a NATO-led, Security Council-authorized civilian
protection mission that is limited with respect to design,
exposure of U.S. troops, risk of escalation, and choice of
military means.
Today let me make three points.
First, this administration is acting lawfully, consistent
with both the letter and spirit of the Constitution and the War
Powers Resolution. Contrary to what some have claimed, we are
not asserting sweeping constitutional power to bypass Congress.
The President has never claimed the authority to take the
Nation to war without congressional authorization. He has never
claimed authority to violate the War Powers Resolution or any
other statute. He has not claimed the right to violate
international law to use force abroad when doing so would not
serve important national interests or to refuse to consult with
Congress on important war powers issues.
We recognize that Congress has powers to regulate and
terminate uses of force and that the War Powers Resolution
plays an important role in promoting interbranch dialogue.
Indeed, my testimony today continues that dialogue which now
includes more than 10 hearings, 30 briefings, and dozens of
exchanges with Congress on these issues.
From the start, we have sought to obey the law. I would not
serve an administration that did not. The President reported to
Congress, consistent with the War Powers Resolution, within 48
hours of commencing operations in Libya. He framed our military
mission narrowly, directing among other things, that no ground
troops would be deployed and that on April 4, U.S. forces would
transition responsibility to NATO command, shifting to a
constrained and supporting role within a multinational civilian
protection mission.
And from the outset, we noted that the situation in Libya
does not constitute a war requiring specific congressional
approval under the Declaration of War Clause of the
Constitution. As my testimony notes on page 13, the President
has constitutional authority, long recognized, to direct the
use of force to serve important national interests and
preserving regional stability and supporting the credibility
and effectiveness of the U.N. Security Council. The nature,
scope, and duration of the military operations he ordered here
did not rise to the level of war for constitutional purposes.
So my second point. We do not believe that the War Powers
Resolution's 60-day automatic pullout provision applies to the
limited Libya mission. As Senator Kerry quoted, absent express
congressional authorization, the resolution directs the
President to remove U.S. Armed Forces within 60 days from the
date that hostilities or situations where imminent involvement
in hostilities is clearly indicated.
But as everyone recognizes, the legal trigger for the
automatic pullout clock, ``hostilities'' is an ambiguous term
of art that is defined nowhere in the statute. The legislative
history, which we cite, makes clear there was no agreed-upon
view of exactly what the term ``hostilities'' would encompass,
nor has that standard ever been defined by any court or by
Congress itself.
From the start, legislators disagreed about the meaning of
the term and the scope of the 60-day pullout rule and whether a
particular set of facts constitutes hostilities for purposes of
the resolution has been determined less by a narrow parsing of
dictionary definitions than by interbranch practice.
The Members of Congress who drafted the War Powers
Resolution understood that this resolution is not like the
Internal Revenue Code. Reading the War Powers Resolution should
not be a mechanical exercise. The term ``hostilities'' was
vague but they declined to give it more concrete meaning in
part to avoid hampering future Presidents by making the
resolution a one-size-fits-all straitjacket that would operate
mechanically without regard to the facts.
As my testimony recounts and as Senator Kerry has himself
noted, there are various leaders of this Congress who have
indicated that they do not believe that the United States
military operations in Libya amount to the kind of hostilities
envisioned by the 60-day pullout provision. We believe that
view is correct and confirmed by historical practice. And the
historical practice, which I summarize in my testimony,
suggests that 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 that was intended to trigger an automatic
60-day pullout.
Let me say just a word about each of these four
limitations.
First, the nature of the mission is unusually limited. By
Presidential design, U.S. forces are playing a constrained and
supporting role in a NATO-led, multinational civilian
protection mission charged with enforcing a Security Council
resolution. This circumstance is virtually unique, not found in
any of the recent historic situations in which the hostilities
questions has been debated from the Iranian hostages crisis to
El Salvador, to Lebanon, to Grenada, to the fighting with Iran
in the Persian Gulf, or to the use of ground troops in Somalia.
Second, the exposure of our Armed Forces is limited. From
the transition date of March 31 forward, there have been no
U.S. casualties, no threat of significant U.S. casualties, no
active exchanges of fire with hostile forces, no significant
armed confrontation or sustained confrontation of any kind with
hostile forces. And as my testimony describes on page 9, past
administrations have not found the 60-day rule to apply even in
a situation where far more significant fighting plainly did
occur such as in Lebanon and Grenada in 1983 and Somalia in
1993.
Third, the risk of escalation here is limited. In contrast
to the U.N.-authorized Desert Storm operation, which presented
over 400,000 troops, the same order of magnitude as Vietnam at
its peak, Libya has not involved any significant chance of
escalation into a full-fledged conflict characterized by a
large U.S. ground presence, major casualties, sustained active
combat, or an expanding geographic scope. In this respect,
Libya contrasts with other recent cases, Lebanon, Central
America, Somalia, the Persian Gulf tanker controversy,
discussed on page 10 of my testimony, where past
administrations declined to find hostilities under the War
Powers Resolution, even though United States Armed Forces were
repeatedly engaged by other sides' forces and sustained
significant casualties.
And fourth and finally, Senators, we are using limited
military means, not the kind of full military engagements with
which the War Powers Resolution is primarily concerned. And
there I quote from a statement by my predecessor, the legal
adviser of 1975, in response to a request from the Congress
about an incident during the Ford administration. The violence
U.S. Armed Forces are directly inflicting or facilitating after
the handoff to NATO has been modest in terms of its frequency,
intensity, and severity. The air-to-ground strikes conducted by
the United States are a far cry from the extensive aerial
strike operations led by United States Armed Forces in Kosovo
in 1999 or the NATO operations in the Balkans in the 1990s, to
which the United States forces contributed the vast majority of
aircraft and airstrike sorties.
To be specific, the bulk of U.S. contributions has been
providing intelligence capabilities and refueling assets to the
NATO effort. A very significant majority of the overall
sorties, 75 percent, are being flown by our coalition partners.
The overwhelming majority of strike sorties, 90 percent, are
being flown by our partners. American strikes have been limited
on an as-needed basis to the suppression of enemy air defenses
to enforce the no-fly zone and limited strikes by Predator
unmanned aerial vehicles against discrete targets to support
the civilian protection mission. By our best estimate,
Senators, since the handoff to NATO, the total number of United
States munitions dropped in Libya has been less than 1 percent
of those dropped in Kosovo.
Now, we acknowledge that had any of these elements been
absent in Libya or present in different degrees, you could draw
a different legal conclusion, but it was this unusual
confluence of these four limitations, an operation that is
limited in mission, limited in exposure, limited in risk of
escalation, and limited in choice of military means, that led
the President to conclude that the Libya operation did not fall
under the automatic 60-day pullout rule.
As Chairman Kerry suggested, we are far from the core case
that most Members of Congress had in mind when they passed the
resolution in 1973. They were concerned there about no more
Vietnams. But given the limited military means, risk of
escalation, exchanges of fire, and United States casualties, we
do not believe that the 1973 Congress intended that its
resolution should be construed so rigidly to stop the President
from directing supporting action in a NATO-led, Security
Council-authorized operation with international approval at the
express request of NATO, the Arab League, the Gulf Cooperation
Council, and Libya's own Transitional National Council for the
narrow but urgent purpose of preventing the slaughter of
innocent civilians in Libya.
Third and finally, Senators, we fully recognize reasonable
minds may read the resolution differently. That would not be a
surprise. They have since their inception. Scholars have spent
their entire careers debating these issues. These questions of
interpretation are matters of important public debate.
Reasonable minds can certainly differ. And we acknowledge that
there were perhaps steps we should have taken or could have
taken to foster better communication on these very difficult
legal questions.
But none of us believes that the best way forward now is
for Qadhafi to prevail and to resume his attacks on his own
people. Were the United States now to drop out of this
collective civilian protection mission or to sharply curtail
its contributions would not only compromise our international
relationships and destabilize the region but would undo NATO's
progress by permitting Qadhafi to return to brutal attacks on
the very civilians whom our intervention has protected. However
we may construe the War Powers Resolution, we can all agree it
would only serve Qadhafi's interests for the United States to
withdraw from this NATO operation before it is finished.
And so the urgent question before you is not one of law but
of policy. Will Congress provide its support for NATO's mission
in Libya at this pivotal juncture, ensuring that Qadhafi does
not regain the upper hand against the people of Libya?
And so in closing, I ask that you take quick and decisive
action to approve Senate Joint Resolution 20, the bipartisan
resolution introduced by Senators Kerry, McCain, Durbin,
Cardin, and seven others of your colleagues to provide
congressional authorization for continued operations in Libya
to enforce the purposes of Security Council Resolution 1973.
Only by so doing can this body affirm that the United States
Government is united in its support of the NATO alliance and
the aspirations of the Libyan people.
Thank you, Senator, and I look forward to answering your
questions.
[The prepared statement of Mr. Koh follows:]
Prepared Statement of Harold Hongju Koh
Thank you, Mr. Chairman, Ranking Member Lugar, and members of the
committee, for this opportunity to testify before you on Libya and war
powers. By so doing, I continue nearly four decades of dialogue between
Congress and Legal Advisers of the State Department, since the War
Powers Resolution was enacted, regarding the executive branch's legal
position on war powers.\1\
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\1\ In 1975, shortly after the enactment of the War Powers
Resolution, Legal Adviser Monroe Leigh testified before Congress, and
then responded to written questions, regarding the meaning and
application of the resolution. See Letter from State Department Legal
Adviser Monroe Leigh and Department of Defense General Counsel Martin
R. Hoffmann to Chairman Clement J. Zablocki (June 5, 1975), reprinted
in ``War Powers: A Test of Compliance Relative to the Danang Sealift,
the Evacuation at Phnom Penh, the Evacuation of Saigon, and the
Mayaguez Incident'': Hearings Before the Subcommittee on International
Security and Scientific Affairs of the House Committee on International
Relations, 94th Cong. (1975) [hereinafter ``1975 Leigh-Hoffmann
Letter'']. Subsequent Legal Advisers have carried on this tradition.
See, e.g., ``War Powers Resolution'': Hearings Before the Senate
Committee on Foreign Relations, 95th Cong. (1977) (testimony of Legal
Adviser Herbert J. Hansell); ``War Powers, Libya, and State-Sponsored
Terrorism'': Hearings Before the Subcommittee on Arms Control, Int'l
Security and Science of the House Committee on Foreign Affairs, 99th
Cong. (1986) (testimony of Legal Adviser Abraham D. Sofaer); ``H. Con.
Res. 82, Directing the President to Remove Armed Forces From Operations
Against Yugoslavia, and H.J. Res. 44, Declaring War Between the United
States and Yugoslavia'': Markup Before the House Committee on Int'l
Relations, 106th Cong. (1999) (testimony of Principal Deputy Legal
Adviser Michael J. Matheson). Cf. Legal Adviser Harold Hongju Koh,
Statement Regarding the Use of Force in Libya, American Society of
International Law Annual Meeting (Mar. 26, 2011) (discussing ``the
historical practice of the Legal Adviser publicly explaining the legal
basis for United States military actions that might occur in the
international realm'').
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We believe that the President is acting lawfully in Libya,
consistent with both the Constitution and the War Powers Resolution, as
well as with international law.\2\ Our position is carefully limited to
the facts of the present operation, supported by history, and
respectful of both the letter of the resolution and the spirit of
consultation and collaboration that underlies it. We recognize that our
approach has been a matter of important public debate, and that
reasonable minds can disagree. But surely none of us believes that the
best result is for Qadhafi to wait NATO out, leaving the Libyan people
again exposed to his brutality. Given that, we ask that you swiftly
approve Senate Joint Resolution 20, the bipartisan measure recently
introduced by 11 Senators, including 3 members of this committee.\3\
The best way to show a united front to Qadhafi, our NATO allies, and
the Libyan people is for Congress now to authorize under that joint
resolution continued, constrained operations in Libya to enforce United
Nations Security Council Resolution 1973.
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\2\ For explanation of the lawfulness of our Libya actions under
international law, see Koh, supra note 1.
\3\ S.J. Res. 20 (introduced by Senators Kerry, McCain, Levin, Kyl,
Durbin, Feinstein, Graham, Lieberman, Blunt, Cardin, and Kirk).
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As Secretary Clinton testified in March, the United States
engagement in Libya followed the administration's strategy of ``using
the combined assets of diplomacy, development, and defense to protect
our interests and advance our values.'' \4\ Faced with brutal attacks
and explicit threats of further imminent attacks by Muammar Qadhafi
against his own people,\5\ the United States and its international
partners acted with unprecedented speed to secure a mandate, under
Resolution 1973, to mobilize a broad coalition to protect civilians
against attack by an advancing army and to establish a no-fly zone. In
so doing, President Obama helped prevent an imminent massacre in
Benghazi, protected critical U.S. interests in the region, and sent a
strong message to the people not just of Libya--but of the entire
Middle East and North Africa--that America stands with them at this
historic moment of transition.
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\4\ Hearing on FY 2012 State Department Budget Before the
Subcommittee on State, Foreign Operations, and Related Programs of the
Senate Committee on Appropriations, 112th Cong. (Mar. 2, 2011).
\5\ Qadhafi's actions demonstrate his ongoing intent to suppress
the democratic movement against him by lawlessly attacking Libyan
civilians. On February 22, 2011, Qadhafi pledged on Libyan National
Television to lead ``millions to purge Libya inch by inch, house by
house, household by household, alley by alley, and individual by
individual until I purify this land.'' He called his opponents
``rats,'' and said they would be executed. On March 17, 2011, in
another televised address, Qadhafi promised, ``We will come house by
house, room by room. . . . We will find you in your closets. And we
will have no mercy and no pity.'' Qadhafi's widespread and systematic
attacks against the civilian population led the United Nations Security
Council, in Resolution 1970, to refer the situation in Libya to the
Prosecutor of the International Criminal Court. The U.N. Human Rights
Council's Commission of Inquiry into Libya subsequently concluded that
since February, ``[human rights] violations and crimes have been
committed in large part by the Government of Libya in accordance with
the command and control system established by Colonel Qadhafi through
the different military, para-military, security and popular forces that
he has employed in pursuit of a systematic and widespread policy of
repression against opponents of his regime and of his leadership.'' At
this moment, Qadhafi's forces continue to fire indiscriminately at
residential areas with shells and rockets. Defecting Qadhafi forces
have recounted orders ``to show no mercy'' to prisoners, and some
recent reports indicate that the Qadhafi regime has been using rape as
a tool of war. See Secretary of State Hillary Rodham Clinton, Press
Statement, Sexual Violence in Libya, the Middle East and North Africa
(June 16, 2011), http://www.state.gov/secretary/rm/2011/06/166369.htm.
For all of these reasons, President Obama declared on March 26,
``[W]hen someone like Qadhafi threatens a bloodbath that could
destabilize an entire region; and when the international community is
prepared to come together to save thousands of lives--then it's in our
national interest to act. And, it's our responsibility. This is one of
those times.''
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From the start, the administration made clear its commitment to
acting consistently with both the Constitution and the War Powers
Resolution. The President submitted a report to Congress, consistent
with the War Powers Resolution, within 48 hours of the commencement of
operations in Libya. He framed our military mission narrowly,
directing, among other things, that no ground troops would be deployed
(except for necessary personnel recovery missions), and that U.S. Armed
Forces would transition responsibility for leading and conducting the
mission to an integrated NATO command. On April 4, 2011, U.S. forces
did just that, shifting to a constrained and supporting role in a
multinational civilian protection mission--in an action involving no
U.S. ground presence or, to this point, U.S. casualties--authorized by
a carefully tailored U.N. Security Council Resolution. As the War
Powers Resolution contemplates, the administration has consulted
extensively with Congress about these operations, participating in more
than 10 hearings, 30 briefings, and dozens of additional exchanges
since March 1--an interbranch dialogue that my testimony today
continues.
This background underscores the limits to our legal claims.
Throughout the Libya episode, the President has never claimed the
authority to take the Nation to war without congressional
authorization, to violate the War Powers Resolution or any other
statute, to violate international law, to use force abroad when doing
so would not serve important national interests, or to refuse to
consult with Congress on important war powers issues. The
administration recognizes that Congress has powers to regulate and
terminate uses of force, and that the War Powers Resolution plays an
important role in promoting interbranch dialogue and deliberation on
these critical matters. The President has expressed his strong desire
for congressional support, and we have been working actively with
Congress to ensure enactment of appropriate legislation.
Together with our NATO and Arab partners, we have made great
progress in protecting Libya's civilian population, and we have
isolated Qadhafi and set the stage for his departure. Although since
early April we have confined our military involvement in Libya to a
supporting role, the limited military assistance that we provide has
been critical to the success of the mission, as has our political and
diplomatic leadership. If the United States were to drop out of, or
curtail its contributions to, this mission, it could not only
compromise our international relationships and alliances and threaten
regional instability, but also permit an emboldened and vengeful
Qadhafi to return to attacking the very civilians whom our intervention
has protected.
Where, against this background, does the War Powers Resolution fit
in? 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. Nor has this standard ever been defined by the courts or
by Congress in any subsequent war powers legislation. Indeed, the
legislative history of the resolution makes clear there was no fixed
view on exactly what the term ``hostilities'' would encompass.\6\
Members of Congress understood that the term was vague, but
specifically declined to give it more concrete meaning, in part to
avoid unduly hampering future Presidents by making the resolution a
``one size fits all'' straitjacket that would operate mechanically,
without regard to particular circumstances.
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\6\ When the resolution was first considered, one of its principal
sponsors, Senator Jacob K. Javits, stated that ``[t]he bill . . . seeks
to proceed in the kind of language which accepts a whole body of
experience and precedent without endeavoring specifically to define
it.'' ``War Powers Legislation'': Hearings on S. 731, S.J. Res. 18, and
S.J. Res. 59 Before the Committee on Foreign Relations, 92d Cong. 28
(1971); see also id. (statement of Professor Henry Steele Commager)
(agreeing with Senator Javits that ``there is peril in trying to be too
exact in definitions,'' as ``[s]omething must be left to the judgment,
the intelligence, the wisdom, of those in command of the Congress, and
of the President as well''). Asked at a House of Representatives
hearing whether the term ``hostilities'' was problematic because of
``the susceptibility of it to different interpretations,'' making this
``a very fuzzy area,'' Senator Javits acknowledged the vagueness of the
term but suggested that it was a necessary feature of the legislation:
``There is no question about that, but that decision would be for the
President to make. No one is trying to denude the President of
authority.'' ``War Powers'': Hearings Before the Subcommittee on
National Security Policy and Scientific Developments of the House
Committee on Foreign Affairs, 93d Cong. 22 (1973). We recognize that
the House report suggested that ``[t]he word hostilities was
substituted for the phrase armed conflict during the subcommittee
drafting process because it was considered to be somewhat broader in
scope,'' but the report provided no clear direction on what either term
was understood to mean. H.R. Rept. No. 93-287, at 7 (1973); see also
Lowry v. Reagan, 676 F. Supp. 333, 340 n.53 (1997) (finding that
``fixed legal standards were deliberately omitted from this statutory
scheme,'' as ``the very absence of a definitional section in the [War
Powers] resolution [was] coupled with debate suggesting that
determinations of `hostilities' were intended to be political decisions
made by the President and Congress'').
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From the start, lawyers and legislators have disagreed about the
meaning of this term and the scope of the resolution's 60-day pullout
rule. Application of these provisions often generates difficult issues
of interpretation that must be addressed in light of a long history of
military actions abroad, without guidance from the courts, involving a
resolution passed by a Congress that could not have envisioned many of
the operations in which the United States has since become engaged.
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 interbranch 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.
In the nearly 40 years since the resolution's enactment, successive
administrations have thus started from the premise that the term
``hostilities'' is ``definable in a meaningful way only in the context
of an actual set of facts.'' \7\ And successive Congresses and
Presidents have opted for a process through which the political
branches have worked together to flesh out the law's meaning over time.
By adopting this approach, the two branches have sought to avoid
construing the statute mechanically, divorced from the realities that
face them.
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\7\ 1975 Leigh-Hoffmann Letter, supra note 1, at 38.
---------------------------------------------------------------------------
In this case, leaders of the current Congress have stressed this
very concern in indicating that they do not believe that U.S. military
operations in Libya amount to the kind of ``hostilities'' envisioned by
the War Powers Resolution's 60-day pullout provision.\8\ The historical
practice supports this view. In 1975, Congress expressly invited the
executive branch to provide its best understanding of the term
``hostilities.'' My predecessor Monroe Leigh and Defense Department
General Counsel Martin Hoffmann responded that, as a general matter,
the executive branch understands the term ``to mean a situation in
which units of the U.S. Armed Forces are actively engaged in exchanges
of fire with opposing units of hostile forces.'' \9\ On the other hand,
as Leigh and Hoffmann suggested, the term should not necessarily be
read to include situations where the nature of the mission is limited
(i.e., situations that do not ``involve the full military engagements
with which the resolution is primarily concerned'' \10\); where the
exposure of U.S. forces is limited (e.g., situations involving
``sporadic military or paramilitary attacks on our Armed Forces
stationed abroad,'' in which the overall threat faced by our military
is low \11\); and where the risk of escalation is therefore limited.
Subsequently, the executive branch has reiterated the distinction
between full military encounters and more constrained operations,
stating that ``intermittent military engagements'' do not require
withdrawal of forces under the resolution's 60-day rule.\12\ In the 36
years since Leigh and Hoffmann provided their analysis, the executive
branch has repeatedly articulated and applied these foundational
understandings. The President was thus operating within this
longstanding tradition of executive branch interpretation when he
relied on these understandings in his legal explanation to Congress on
June 15, 2011
---------------------------------------------------------------------------
\8\ Both before and after May 20, 2011, the 60th day following the
President's initial letter to Congress on operations in Libya, few
Members of Congress asserted that our participation in the NATO mission
would trigger or had triggered the War Powers Resolution's pullout
provision. House Speaker Boehner stated on June 1, 2011, that
``[1]egally, [the Administration has] met the requirements of the War
Powers Act.'' House Minority Leader Pelosi stated on June 16, 2011,
that ``[t]he limited nature of this engagement allows the President to
go forward,'' as ``the President has the authority he needs.'' Senate
Majority Leader Reid stated on June 17, 2011, that ``[t]he War Powers
Act has no application to what's going on in Libya.'' Senate Foreign
Relations Committee Chairman Kerry stated on June 21, 2011, that ``I do
not think our limited involvement rises to the level of hostilities
defined by the War Powers Resolution,'' and on June 23, 2011, that
``[w]e have not introduced our armed forces into hostilities. No
American is being shot at. No American troop is at risk of being shot
down today. That is not what we're doing. We are refueling. We are
supporting NATO.'' Since May 20, the basic facts regarding the limited
nature of our mission in Libya have not materially changed.
\9\ 1975 Leigh-Hoffmann Letter, supra note 1, at 38-39.
\10\ The quoted language comes from the Department of Justice,
which in 1980 reaffirmed the Leigh-Hoffmann analysis. ``Presidential
Power to Use the Armed Forces Abroad Without Statutory Authorization,''
4A Op. O.L.C. 185, 194 (1980).
\11\ Id.; see also Letter from Assistant Secretary of State J.
Edward Fox to Chairman Dante B. Fascell (Mar. 30, 1988) (stating that
``hostilities'' determination must be ``based on all the facts and
circumstances as they would relate to the threat to U.S. forces at the
time'' (emphasis added)).
\12\ Letter from Assistant Secretary of State for Legislative
Affairs Wendy R. Sherman to Representative Benjamin Gilman, reprinted
in 139 Cong. Rec. H7095 (daily ed. Sept. 28, 1993).
---------------------------------------------------------------------------
In light of this historical practice, a combination of four factors
present in Libya suggests that the current situation does not
constitute the kind of ``hostilities'' envisioned by the War Powers
Resolution's 60-day automatic pullout provision.
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. This
is a very unusual set of circumstances, not found in any of the
historic situations in which the ``hostilities'' question was
previously debated, from the deployment of U.S. Armed Forces to
Lebanon, Grenada, and El Salvador in the early 1980s, to the fighting
with Iran in the Persian Gulf in the late 1980s, to the use of ground
troops in Somalia in 1993. Of course, NATO forces as a whole are more
deeply engaged in Libya than are U.S. forces, but the War Powers
Resolution's 60-day pullout provision was designed to address the
activities of the latter.\13\
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\13\ A definitional section of the War Powers Resolution, 8(c),
gives rise to a duty of congressional notification, but not
termination, upon the ``assignment'' of U.S. forces to command,
coordinate, participate in the movement of, or accompany foreign forces
that are themselves in hostilities. Section 8(c) is textually linked
(through the term ``introduction of United States Armed Forces'') not
to the ``hostilities'' language in section 4 that triggers the
automatic pullout provision in section 5(b), but rather, to a different
clause later down in that section that triggers a reporting
requirement. According to the Senate report, the purpose of section
8(c) was ``to prevent secret, unauthorized military support activities
[such as the secret assignment of U.S. military `advisers' to South
Vietnam and Laos] and to prevent a repetition of many of the most
controversial and regrettable actions in Indochina,'' S. Rept. No. 93-
220, at 24 (1973) actions that scarcely resemble NATO operations such
as this one. Indeed, absurd results could ensue if section 8(c) were
read to trigger the 60-day clock, as that could require termination of
the ``assignment'' of even a single member of the U.S. military to
assist a foreign government force, unless Congress passed legislation
to authorize that one-person assignment. Moreover, section 8(c) must be
read together with the immediately preceding section of the resolution,
8(b). By grandfathering in preexisting ``high-level military
commands,'' section 8(b) not only shows that Congress knew how to
reference NATO operations when it wanted to, but also suggests that
Congress recognized that NATO operations are generally less likely to
raise the kinds of policy concerns that animated the resolution. If
anything, the international framework of cooperation within which this
military mission is taking place creates a far greater risk that by
withdrawing prematurely from Libya, as opposed to staying the course,
we would generate the very foreign policy problems that the War Powers
Resolution was meant to counteract: for example, international
condemnation and strained relationships with key allies.
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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.\14\ Prior
administrations have not found the 60-day rule to apply even in
situations where significant fighting plainly did occur, as in Lebanon
and Grenada in 1983 and Somalia in 1993.\15\ By highlighting this
point, we in no way advocate a legal theory that is indifferent to the
loss of non-American lives. But here, there can be little doubt that
the greatest threat to Libyan civilians comes not from NATO or the
United States military, but from Qadhafi. The Congress that adopted the
War Powers Resolution was principally concerned with the safety of U.S.
forces,\16\ 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.\17\
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\14\ The fact that the Defense Department has decided to provide
extra ``danger pay'' to those U.S. service members who fly planes over
Libya or serve on ships within 110 nautical miles of Libya's shores
does not mean that those service members are in ``hostilities'' for
purposes of the War Powers Resolution. Similar danger pay is given to
U.S. forces in Burundi, Greece, Haiti, Indonesia, Jordan, Montenegro,
Saudi Arabia, Turkey, and dozens of other countries in which no one is
seriously contending that ``hostilities'' are occurring under the War
Powers Resolution.
\15\ In Lebanon, the Reagan administration argued that U.S. Armed
Forces were not in ``hostilities,'' though there were roughly 1,600
U.S. marines equipped for combat on a daily basis and roughly 2,000
more on ships and bases nearby; U.S. marine positions were attacked
repeatedly; and four marines were killed and several dozen wounded in
those attacks. See Richard F. Grimmett, Congressional Research Service,
``The War Powers Resolution: After Thirty Six Years'' 13-15 (Apr. 22,
2010); John H. Kelly, Lebanon: 1982-1984, in ``U.S. and Russian
Policymaking With Respect to the Use of Force'' 85, 96-99 (Jeremy R.
Azrael & Emily A. Payin eds., 1996). In Grenada, the administration did
not acknowledge that ``hostilities'' had begun under the War Powers
Resolution after 1,900 members of the U.S. Armed Forces had landed on
the island, leading to combat that claimed the lives of nearly 20
Americans and wounded nearly 100 more. See Grimmett, supra, at 15; Ben
Bradlee, Jr., ``A Chronology on Grenada,'' Boston Globe, Nov. 6, 1983.
In Somalia, 25,000 troops were initially dispatched by the President,
without congressional authorization and without reference to the War
Powers Resolution, as part of Operation Restore Hope. See Grimmett,
supra, at 27. By May 1993, several thousand U.S. forces remained in the
country or on ships offshore, including a Quick Reaction Force of some
1,300 marines. During the summer and into the fall of that year, ground
combat led to the deaths of more than two dozen U.S. soldiers. John L.
Hirsch & Robert B. Oakley, ``Somalia and Operation Restore Hope:
Reflections on Peacemaking and Peacekeeping'' 112, 124-27 (1995).
\16\ The text of the statute supports this widely held
understanding, by linking the pullout provision to the ``introduction''
of United States Armed Forces ``into hostilities,'' suggesting that its
primary focus is on the dangers confronted by members of our own
military when deployed abroad into threatening circumstances. section
5(c), by contrast, refers to United States Armed Forces who are
``engaged in hostilities.''
\17\ Cf. Crockett v. Reagan, 558 F. Supp. 893, 899 (D.D.C. 1982)
(``The War Powers Resolution, which was considered and enacted as the
Vietnam war was coming to an end, was intended to prevent another
situation in which a President could gradually build up American
involvement in a foreign war without congressional knowledge or
approval, eventually presenting Congress with a full-blown undeclared
war which on a practical level it was powerless to stop.'').
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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. Contrast this with the 1991
Desert Storm operation, which although also authorized by a United
Nations Security Council resolution, presented ``over 400,000 [U.S.]
troops in the area--the same order of magnitude as Vietnam at its
peak--together with concomitant numbers of ships, planes, and tanks.''
\18\ Prior administrations have found an absence of ``hostilities''
under the War Powers Resolution in situations ranging from Lebanon to
Central America to Somalia to the Persian Gulf tanker controversy,
although members of the United States Armed Forces were repeatedly
engaged by the other side's forces and sustained casualties in volatile
geopolitical circumstances, in some cases running a greater risk of
possible escalation than here.\19\
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\18\ John Hart Ely ``War and Responsibility: Constitutional Lessons
of Vietnam and its Aftermath'' 50 (1993).
\19\ For example, in the Persian Gulf in 1987-88, the Reagan
administration found the War Powers Resolution's pullout provision
inapplicable to a reflagging program that was conducted in the shadow
of the Iran-Iraq war; that was preceded by an accidental attack on a
U.S. Navy ship that killed 37 crewmen; and that led to repeated
instances of active combat with Iranian forces. See Grimmett, supra
note 15, at 16-18.
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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.'' \20\ The violence that U.S. Armed Forces have directly
inflicted or facilitated after the handoff to NATO has been modest in
terms of its frequency, intensity, and severity. The air-to-ground
strikes conducted by the United States in Libya are a far cry from the
bombing campaign waged in Kosovo in 1999, which involved much more
extensive and aggressive aerial strike operations led by U.S. Armed
Forces.\21\ The U.S. contribution to NATO is likewise far smaller than
it was in the Balkans in the mid-1990s, where U.S. forces contributed
the vast majority of aircraft and air strike sorties to an operation
that lasted over 2\1/2\ years, featured repeated violations of the no-
fly zone and episodic firefights with Serb aircraft and gunners, and
paved the way for approximately 20,000 U.S. ground troops.\22\ Here, by
contrast, the bulk of U.S. contributions to the NATO effort has been
providing intelligence capabilities and refueling assets. A very
significant majority of the overall sorties are being flown by our
coalition partners, and the overwhelming majority of strike sorties are
being flown by our partners. American strikes have been confined, on an
as-needed basis, to the suppression of enemy air defenses to enforce
the no-fly zone, and to limited strikes by Predator unmanned aerial
vehicles against discrete targets in support of the civilian protection
mission; since the handoff to NATO, the total number of U.S. munitions
dropped has been a tiny fraction of the number dropped in Kosovo. All
NATO targets, moreover, have been clearly linked to the Qadhafi
regime's systematic attacks on the Libyan population and populated
areas, with target sets engaged only when strictly necessary and with
maximal precision.
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\20\ ``Presidential Power to Use the Armed Forces Abroad Without
Statutory Authorization,'' 4A Op. O.L.C. 185, 194 (1980).
\21\ In Kosovo, the NATO alliance set broader goals for its
military mission and conducted a 78-day bombing campaign that involved
more than 14,000 strike sorties, in which the United States provided
two-thirds of the aircraft and delivered over 23,000 weapons. The NATO
bombing campaign coincided with intensified fighting on the ground, and
NATO forces, led by U.S. forces, ``flew mission after mission into
antiaircraft fire and in the face of over 700 missiles fired by
Yugoslav air defense forces.'' Hearing Before the S. Armed Servs.
Comm., 106th Cong. (1999) (statement of Gen. Wesley Clark, Admiral
James Ellis, Jr. & Lt. Gen. Michael Short).
\22\ See ``Proposed Deployment of United States Armed Forces into
Bosnia,'' 19 Op. O.L.C. 327 (1995); Dean Simmons et al., U.S. Naval
Institute, Air Operations over Bosnia, Proceedings Magazine, May 1997,
available at http://www.usni.org/magazines/proceedings/1997-05/air-
operations-over-bosnia; NATO Fact Sheet, Operation Deny Flight (July
18, 2003), http://www.afsouth.nato.int/archives/operations/DenyFlight/
DenyFlightFactSheet.htm. U.S. air operations over Bosnia ``were among
the largest scale military operations other than war conducted by U.S.
forces since the end of the cold war.'' Simmons et al., supra.
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Had any of these elements been absent in Libya, or present in
different degrees, a different legal conclusion might have been drawn.
But the unusual confluence of these four factors, in an operation that
was expressly designed to be limited--limited in mission, exposure of
U.S. troops, risk of escalation, and military means employed--led the
President to conclude that the Libya operation did not fall within the
War Powers Resolution's automatic 60-day pullout rule.
Nor is this action inconsistent with the spirit of the resolution.
Having studied this legislation for many years, I can confidently say
that we are far from the core case that most Members of Congress had in
mind in 1973. The Congress that passed the resolution in that year had
just been through a long, major, and searing war in Vietnam, with
hundreds of thousands of boots on the ground, secret bombing campaigns,
international condemnation, massive casualties, and no clear way out.
In Libya, by contrast, we have been acting transparently and in close
consultation with Congress for a brief period; with no casualties or
ground troops; with international approval; and at the express request
of and in cooperation with NATO, the Arab League, the Gulf Cooperation
Council, and Libya's own Transitional National Council. We should not
read into the 1973 Congress' adoption of what many have called a ``No
More Vietnams'' resolution an intent to require the premature
termination, nearly 40 years later, of limited military force in
support of an international coalition to prevent the resumption of
atrocities in Libya. Given the limited risk of escalation, exchanges of
fire, and U.S. casualties, we do not believe that the 1973 Congress
intended that its resolution be given such a rigid construction--absent
a clear congressional stance--to stop the President from directing
supporting actions in a NATO-led, Security Council-authorized
operation, for the narrow purpose of preventing the slaughter of
innocent civilians.\23\
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\23\ As President Obama noted in his June 22, 2011, speech on
Afghanistan: ``When innocents are being slaughtered and global security
endangered, we don't have to choose between standing idly by or acting
on our own. Instead, we must rally international action, which we're
doing in Libya, where we do not have a single soldier on the ground,
but are supporting allies in protecting the Libyan people and giving
them the chance to determine their own destiny.''
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Nor are we in a ''war`` for purposes of Article I of the
Constitution. As the Office of Legal Counsel concluded in its April 1,
2011, opinion,\24\ under longstanding precedent the President had the
constitutional authority to direct the use of force in Libya, for two
main reasons. First, he could reasonably determine that U.S. operations
in Libya would serve important national interests in preserving
regional stability and supporting the credibility and effectiveness of
the U.N. Security Council. Second, the military operations that the
President anticipated ordering were not sufficiently extensive in
``nature, scope, and duration'' to constitute a ``war'' requiring prior
specific congressional approval under the Declaration of War Clause.
Although time has passed, the nature and scope of our operations have
not evolved in a manner that would alter that conclusion. To the
contrary, since the transfer to NATO command, the U.S. role in the
mission has become even more limited.
---------------------------------------------------------------------------
\24\ Office of Legal Counsel, U.S. Dep't of Justice, President's
Authority to Use Military Force in Libya, http://www.justice.gov/olc/
2011/authority-military-use-in-libya.pdf (Apr. 1, 2011).
---------------------------------------------------------------------------
Reasonable minds may read the Constitution and the War Powers
Resolution differently--as they have for decades. Scholars will
certainly go on debating this issue. But that should not distract those
of us in government from the most urgent question now facing us, which
is not one of law but of policy: Will Congress provide its support for
NATO's mission in Libya at this pivotal juncture, ensuring that Qadhafi
does not regain the upper hand against the people of Libya? The
President has repeatedly stated that it is better to take military
action, even in limited scenarios such as this, with strong
congressional engagement and support. However we construe the War
Powers Resolution, we can all agree that it serves only Qadhafi's
interest for the United States to withdraw from this NATO operation
before it is finished.
That is why, in closing, we ask all of you to take quick and
decisive action to approve S.J. Res. 20, the bipartisan resolution
introduced by Senators Kerry, McCain, Durbin, Cardin, and seven others
to provide express congressional authorization for continued,
constrained operations in Libya to enforce U.N. Security Council
Resolution 1973. Only by so doing, can this body affirm that the United
States Government is united in its commitment to support the NATO
alliance, the safety and stability of this pivotal region, and the
aspirations of the Libyan people for political reform and self-
government.
Thank you. I look forward to answering your questions.
The Chairman. Thank you very much, Harold Koh. We
appreciate the testimony enormously.
I am going to reserve my time for such time as I may want
to intervene with my questions, and I will turn to Senator
Lugar to start.
Senator Lugar. Mr. Koh, one of the reasons why it is
important to have this hearing and likewise debate on this
issue is that throughout the Middle East, but even throughout
the world, there are a number of situations in which the United
States and other nations have severe disapproval of the
governments of those countries. As a matter of fact, from time
to time, we make speeches. We editorialize. We work with others
in the United Nations to attempt to bring about conditions that
are better for the people of countries that we believe are
under a totalitarian or very authoritarian misrule.
Now, in this particular instance, the Libyan situation
arose following uprisings in Tunisia and Egypt, which certainly
caught the attention of the United States and the world, quite
apart from the Arab League and the United Nations and NATO.
In the case of Libya, however, the Arab League and the
United Nations and NATO and what have you and ultimately the
United States made a decision to intervene in a civil war.
There was shooting going on in Libya. It could very well be
that persons who were innocent might be caught in the
crossfire. This is the tragedy of civil wars, I suspect,
wherever they may be held on this earth.
In this particular instance, our decision was to intervene
in a civil war, and we are continuing to intervene in a civil
war. And despite the fact that we talk about limited
hostilities, we also talk openly as a Government about the end
of the Muammar Qadhafi rule, about the importance of Qadhafi
leaving the country, and we even send out rumors that he may be
entertaining such thoughts.
My basic question is if we do not have some ground rules,
the War Powers Act may be one area where we try to work this
thing out or a more formal declaration of war. And this country
could decide to intervene in numerous civil wars. It could
decide really to affect the governance of peoples all over the
world that we feel is unfair.
What is your general comment about this predicament? In
other words, you may feel very strongly that the Qadhafi rule
is so egregiously out of line as opposed to all the other
dictators that we have witnessed all over the earth that there
is no doubt that we should intervene to prevent him from
winning, to prevent him from shooting at people who may be
opposing him and who may be shooting at him and his forces.
What is the ground rule for dealing with civil war wherever we
may find it all over the earth?
Mr. Koh. Senator, thank you for that very thoughtful
question. You have, over your career, been one of the most
thoughtful defenders of the Constitution in foreign affairs.
And I recognize the difference of view between what I have
expressed and what you have expressed is from a good faith
disagreement. I understand the concern that you have.
But throughout the Middle East, there is only one situation
in which there is a U.N. Security Council resolution narrowly
drawn in which NATO has agreed to take command of the
operation, in which the Arab League supported the operation, in
which four Muslim countries were ready to join the coalition,
have been flying flights, and in which the President was, as I
have suggested, able to structure the mission so that it was of
limited nature, so the United States would move very quickly
into a limited supporting role, where there would be no ground
troops so that there would be a limited exposure, where the
risk of escalation would be low, and where the United States
after the transition would narrow the means being employed so
that only its unique capabilities could be used to prevent
Qadhafi from using the tools of command and control to kill his
own people. So that is a very unusual set of circumstances. And
what we are saying is in that set of circumstances, the
President acted lawfully in proceeding as he did.
Now, the wisdom of proceeding in other countries is,
obviously, a subject of substantial discussion. It would be
complicated, I am sure, to replicate that unusually narrow set
of facts.
But I say this because I think that our theory and legal
approach has been dramatically misunderstood. There is some
suggestion that we are flouting the Constitution. In fact, we
have made it clear that we are not challenging the
constitutionality of the resolution. What we are arguing about
is whether a very unusual situation fits within a resolution
that has been on the books now for almost 40 years and which
was designed to play a particular role and will have to be
adapted to play that role effectively in this century.
Senator Lugar. Well, obviously, I raise the question
because I fear that there may be circumstances in which we make
a decision based upon the Security Council or somebody else to
intervene in other situations. I would like our own war powers
declaration to be clarified before we get to that point.
I raise one more point, and this may require more hearings,
and that is, although we say that the force that we are
offering is limited--and this could include the missiles that
we fire or drone strikes or what have you--my guess is that if
another country were employing such methods against us without
employing any troops on the ground in the United States or any
of the so-called conventional means of war, we would see this
as an act that was hostile. This would clearly be hostilities.
Very clearly, we would say that is grounds for us to be at war
with whoever is firing at us in these situations.
This is why I think perhaps the administration needs to
work with the Congress to try to think through in this era of
drone warfare or long-distance warfare. That is not a question
simply of whether American casualties occur or there are
hostilities on the ground. A war in the future may be fought in
an entirely different way, perhaps not encompassed by the War
Powers Act, but surely needing to be encompassed by all of us
who are thoughtful about the evolution of these hostilities.
Mr. Koh. Well, Senator, you make two points.
I was thinking this morning, as I was coming up here, that
the first time I testified before the Senate on war powers
issues was in January 1991 as Desert Shield was about to become
Desert Storm. There was a U.N. Security Council resolution
there. But the question was did you also need an authorization
of use of military force. And my position there, which remains
the same, is that in that circumstance, despite the fact of a
multinational coalition authorized by a Security Council
resolution, the proposal for 400,000 U.S. troops and comparable
vessels and accompanying forces which was the number of forces
in Vietnam at its height. So a U.N. Security Council resolution
alone does not absolve a situation of requiring approval.
What makes this situation unusual is not the existence of a
Security Council resolution, but the fact that the mission that
has been structured under it is so limited with the U.S.
playing such a narrow and supporting role and with such limited
exposure. We are talking about, as Senator Kerry said, no
casualties, no threat of casualties, no significant armed
engagements.
Now, another point that has been made by some about our
legal approach is that we are somehow suggesting that drones
get a free pass under the War Powers Resolution. That is not at
all what we are saying. But you make the key point which is
when the statute talks about the introduction of U.S. Armed
Forces into hostilities and what you are sending in is an
unmanned aerial vehicle high in the sky, it is not clear that
that provision was intended to apply to that particular weapon.
Now, it does lead to the question of how to update the War
Powers Resolution for modern conflict. There will be situations
of cyber conflict and other kinds of modern technologies coming
into play which Senators and Members of Congress never
envisioned in 1973. So it may well be--and I think you make the
point well--that there was an effort here in the wake of
Vietnam to draw a kind of framework statute that would allocate
authorities, call for reporting, try to promote dialogue. That
has existed for nearly 40 years. But many of the provisions,
particularly the mechanical ones such as the automatic pullout
provision, may turn out to be poorly suited for the current
situation.
Senator Lugar. Thank you.
The Chairman. Thank you, Senator Lugar.
Senator Casey.
Senator Casey. Thanks very much.
I wanted to pursue some of the same line of questioning,
and I appreciate the fact that this is difficult as a matter of
constitutional law but also difficult as a matter of policy and
perception.
I hear a lot from people in Pennsylvania that have real
concerns about this policy not only on some of the
constitutional debates we are having but just in terms of the
clear impression that has been created that we are engaged in
hostilities of one kind or another. It gets very difficult for
people to separate from that perception.
There are reports we know, at least according to the New
York Times, that since this handoff took place, that United
States warplanes have struck, according to this one report, 60
Libyan targets and, at the same time, unmanned drones,
according to this report, fired at Libyan forces roughly 30
times.
So in the context of that reporting, I would ask you about
this broader question, I guess--or it is actually a more
pointed question--as it relates to the administration's
justification of armed drone attacks and so-called nonhostile
operations. How do you get there just as a matter of law?
Mr. Koh. Thank you, Senator. I appreciate again the
thoughtfulness of the question, which I think is a very good
one.
In the early days of the Libyan action, as Secretary Gates
described, the goal was to create a no-fly zone to prevent
Qadhafi from attacking his own people. As we point out in
footnote 5 of my testimony, Qadhafi appears to have rules of
engagement that call for indiscriminate attacks on his own
people, no mercy rules, rape as a weapon of war. These have led
to both the commission of inquiry and yesterday an arrest
warrant against him at the International Criminal Court.
So the question of what kind of military mission to
structure--to respond--and the core of it was, first, the
establishment of the no-fly zone, and then, second, for the
United States to shift from a lead role into a support role.
And the bulk of the contributions, as I have suggested, has
been primarily intelligence, refueling, search and rescues,
flyovers, and the like with no fire at all.
But there are two elements that have been added to the
picture. One is enemy air defenses. If Qadhafi's command and
control existed and if initial efforts have been made to
destroy that command and control and he shifts those operations
to other command and control, he can replicate his capacity to
kill civilians. And so to move from one and then stop is simply
allowing Qadhafi in a game of Whac-A-Mole to return to the very
acts that led to the intervention in the first place.
That has been the basis of the notion that American strikes
should be authorized on an as-needed basis to suppress enemy
air defenses, to enforce the no-fly zone, and then the unique
capabilities that American military forces have been requested
by the NATO allies to hit particular discrete targets to
support the civilian protection mission, particularly command
and control or other kinds of antiaircraft which are difficult
to reach by other means.
Now, let me emphasize again some numbers that I gave
earlier because I think they are important. In the overall
number of sorties that have been flown, the United States is
flying a quarter, but in the strike sorties that are being
flown, the United States is flying only 10 percent. The
Predator strikes, as you suggested, are a relatively small
number. And the total number of munitions dropped by either
manned or Predators at this moment, according to our best
information, is less than 1 percent of the amount that was
dropped in Kosovo, in which there was a substantial debate over
the application of the War Powers Resolution.
So you came back to the question, are we engaged in
hostilities? This is, as I said, not a parsing of dictionary
terms. It is a statutory provision. Congress passes provisions
all the time that have terms of art like ``emergency.'' The
word ``treaty'' in one statute was recently read to mean
``executive agreement.'' I am sure the Foreign Relations
Committee might have some questions about that, but that is the
ruling of the Supreme Court. Here the word chosen was
``hostilities,'' and over time hostilities has been defined
through executive and congressional practice to encompass some
level of strikes with a major focus, as I have suggested, being
on whether the mission is limited, whether the risk of
escalation is limited, whether the exposure is limited, and
whether the choice of military means is narrowly constrained.
And it is within that set of four limitations that apply here
that it was our conclusion that we are well within the scope of
the kinds of activity that in the past have not been deemed to
be hostilities for purposes of the War Powers Resolution.
Senator Casey. I will ask you some other questions by way
of supplemental written questions.
But I would ask you as well, in connection with this, are
you concerned about the precedent here as it relates to
Executive power. Do you have any concerns about that? Do you
think that this is breaking new ground?
Mr. Koh. Well, there are two different questions, Senator.
Of course, I am concerned about the precedent. I have spent
much of my academic career writing about the balance of powers
between Congress and the Executive in foreign affairs. In 1990,
my first book on this subject, I pointed out that the basic
structural flaw of the War Powers Resolution, which has a
number of virtues--one of the virtues is it promotes dialogue
through a blunt time limit. But one of its structural flaws is
that it requires an automatic pullout with Congress ever having
made a specific judgment about whether or not they approve or
disapprove of an action. And that could lead in certain
circumstances to atrocities resuming because of the lack of a
clear congressional stance. The goal in the Vietnam era was to
try to find a single congressional position that could be
applied.
Now, I agree that there have been cases in which the
executive branch has overreached. I have written about this in
my academic work for many years, which is precisely why the
precedent here we think has been narrowly drawn. As I said, we
are not challenging the constitutionality of the resolution,
which a number of administrations have. We are not saying the
War Powers Resolution should be scrapped, whether it is
constitutional or not. What we are simply saying is that when
the mission is limited, the risk of escalation is limited, the
threat to troops is limited particularly because of no ground
troops, and when the tools being used are extremely limited,
that that does not trigger the 60-day clock.
And in doing so, we look to Executive and congressional
precedents dating back to 1975, the Persian Gulf tanker
controversy, Lebanon, Somalia, Grenada, to see where it fit.
And when you have a situation in which something like Kosovo or
Bosnia where campaigns on a very large scale--and we are
talking here about a zero casualty, little or no risk of
escalation situation and 1 percent of the munitions, that
strikes us as a difference that ought to be reflected in
whether it fits within the scope of the statute.
So the very rationale that I am presenting today is
limited. If any of those elements are not present, none of what
I have said necessarily applies. You would have to redo the
analysis.
Senator Casey. Thank you.
The Chairman. Thank you, Senator Casey.
Senator Corker.
Senator Corker. Thank you, Mr. Chairman.
And thank you for your testimony. I do want to say that in
many cases I have heard certainly you today, but the
administration try to justify sort of the ends--or the means
for the end. I know that you have talked a little bit about
Libya and Qadhafi and your handling of this. I just want to say
that those are two very, very separate issues, and I am sure
that up here there are people who have very differing opinions
about our involvement in Libya but still have strong concerns
about the way the administration has handled the actual process
itself. So I do not think it is very helpful to try to meld the
two together, and I think it really waters down the issue at
hand.
I will say then that I find it humorous sitting here on the
Foreign Relations Committee, the most deliberative body in the
world some say, and basically you guys have not provided
witnesses from the Department of Justice or the Pentagon. We
seem to take that as a humorous thing. You know, the
administration has basically said there is no reason for us to
get any kind of resolution from Congress, and yet the Senate
today in its urge to be ``relevant'' is rushing to give the
administration a resolution even though it is basically saying
in this case the Senate is irrelevant.
So I would ask you this one question. Now that you have
taken this argument and seen the response that you have gotten
from people on both sides of the aisle, are you still glad that
you traveled this route as it relates to making the argument
you have made about the War Powers Act?
Mr. Koh. Senator, I believe this argument. I think it is
correct. I would not be here if I did not believe that.
Senator Corker. I did not ask that. 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? I mean, is that something that
you are glad you have done?
Mr. Koh. Senator, that was not our intent, and if you felt
that a stick was stuck, that was not the goal.
You said a number of things which I thought I should
include in my answer.
One, the War Powers Resolution is not a mechanical device.
It has to be construed in light of the facts at the time.
Otherwise, the 1973 Congress would be making decisions instead
of the Congress of 2011. So it has to take account of the
circumstance.
Second, with regard to witnesses, I am the legal adviser of
the State Department. Footnote 1 of my testimony reviews the
many times that the legal adviser has appeared before this and
other committees to present on the War Powers Resolution. This
is my committee of jurisdiction. You voted my confirmation, and
so I am here for the conversation.
Third, it was our position from the beginning that we were
acting consistently with the War Powers Resolution, but that we
would welcome support because, as Senator Lugar said, the
President would always value a bipartisan support for this kind
of effort or mission.
And finally, you asked whether we have made errors. I think
that this controversy has probably not played out exactly as
some would have expected. If we had to roll the tape back, I am
sure there are many places where some would have urged--and I
would have been among them--coming up earlier for more
briefings and to lay out these legal positions. For my part of
that, I take responsibility.
But I do believe that at the end of the day, the last thing
we are saying, Senator--in fact, the thing we are not saying is
that the Senate is irrelevant. To the contrary.
Senator Corker. We are making ourselves irrelevant.
Let me do this. This is a long answer. I would like to have
just a--I wanted to give you the respect of answering. I did
not really want you to answer everything I just said, but since
you have, I would like to have a couple extra minutes. Do you
want to say any more regarding my opening comments?
Mr. Koh. I think the point of my testimony is however the
legal question is addressed, there is still fundamentally the
question of what to do about the civilians in Libya. And that
is a decision on which the Senate can make a decision this
afternoon. This committee.
Senator Corker. Well, I do not think we are really making
any decisions than are different than what you are carrying
out. So we are rushing to make ourselves irrelevant this
afternoon by virtue of passing something out that basically
says--you know what it says.
So let me ask you this. The chairman mentioned that since
no American is being shot, there are no hostilities. Of course,
by that reasoning, we could drop a nuclear bomb on Tripoli and
we would not be involved in hostilities. It just goes to the
sort of preposterous argument that is being made.
But I do think one of the issues of precedence that you are
setting is that Predators now--and I do want to remind you the
Justice Department of this administration has spent lots of
time trying to deal with people's rights as it relates to
terrorism and that kind of thing. And yet, basically what you
all are doing by arguing this narrow case is saying that any
President of the United States, Republican or Democrat, can
order Predator strikes in any country and that is not
hostilities. And of course, we know what Predators do. I think
you know what they do, and lots of times human beings are not
alive after they finish their work.
So basically what you are doing is arguing that a President
can order Predator strikes in any place in the world by virtue
of this narrow argument that you have taken and that is not
hostilities and Congress plays no role in that.
Mr. Koh. Senator, that is not what I am arguing. Obviously,
if Predator strikes were at a particular level or if we were
carpet bombing a country using Predators, that would create a
dramatically different situation. But the scenario that I have
described to Senator Casey is a very different one. Within the
constraints of this particular mission without ground troops,
the Predators are playing a particular role with regard to the
elimination of certain kinds of assets of Qadhafi that are
being used to kill his own civilians. Even the numbers that
Senator Casey mentioned are not close to the kind of level that
we would consider to be ones that would trigger the pullout
provision.
So I think the important thing--and the question that had
been asked was are we presenting a limited position. Yes,
because all four limitations are what bring it within the line
of the statute. We do not say that any element at all by itself
could not be expanded out of shape and require a reexamination
under the War Powers Resolution. I gave the example of a U.N.
Security Council situation, Desert Storm, that required
approval because of the scale of the operation.
Senator Corker. I think you have established a precedent.
This administration has established a precedent for this
country by taking this argument that any President, Republican
or Democrat, can use Predators in any country they wish because
that is limited hostilities without Congress being involved.
I am going to probably come to a close quicker than I
wanted to because of the time.
But we do have aircraft flying over Libyan airspace. Do we
not? That is yes or no.
Mr. Koh. Yes; we do.
Senator Corker. And we do know that there are numbers of
types of weapons that they have that could, in fact, take down
our aircraft that are not necessarily in fixed positions. Is
that correct?
Mr. Koh. That is correct.
Senator Corker. So to say that our men and women in uniform
are not in a position to encounter hostilities or involved
hostilities is really pretty incredible.
You know, you cite the fact that hostilities has never been
defined. I went back and read the House conference which
basically reported out the War Powers Act. As a matter of fact,
they tried to make it a lesser level. They started out with
``armed conflict,'' and then they used the word
``hostilities.'' And they did so in such a manner to certainly
talk about the kinds of conditions that exist today on the
ground. So when you say that these are not hostilities, that is
just patently not the intent of Congress when they passed the
War Powers Act.
Now, you have introduced something unique, a mathematical
formula. And I am sure future Presidents will use a
mathematical formula. In other words, if we are only doing X
percent of the bombing, then we are not involved in
hostilities. But I find that not in any way to jibe with what
the House sent out in its reporting language.
I am just going to close with this because my time is up,
and I know the chairman is getting impatient.
I did not support your nomination. I thought you are a very
intelligent person obviously, very well learned. But I felt
that you had the likelihood to subject U.S. law or to cause it
to be lesser important than international law. And while I made
no statement to that effect publicly, I told you that privately
when we met in our office. And that is exactly what you have
done. You basically said the United Nations has authorized this
and there is no need for Congress to act and we are going to
narrowly define hostilities.
I would guess at night, however people of your category
give high fives, you are talking to other academics about this
cute argument that has been utilized. But I would say to you
that I think you have undermined the credibility of this
administration. I think you have undermined the integrity of
the War Powers Act. And I think by taking this very narrow
approach, you have done a great disservice to our country.
And I do hope--I do hope--that at some point we will look
at the War Powers Act in light of new technology, in light of
new conflicts, and define it in a way that someone using these
narrow and what I would call cute arguments does not have the
ability to work around Congress.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Corker.
I think it is important, obviously, to have these views
out. I was not growing at all impatient. I am happy to give you
extra time. I think this is an important discussion. As I think
you know, Senator, I value my friendship and our relationship a
lot.
But I do have to tell you, based on what you just said,
that your facts are just incorrect. I mean, your basic facts on
which you are basing your judgment is incorrect. Let me tell
you why.
First of all, the President of the United States accepts
the constitutionality of the War Powers Act and sought to live
by it. No President has done that yet.
Senator Corker. I did not argue that. So that is not a
fact----
The Chairman. Well, but it is a fact because you come to
the next point. Having done that, the President sent us a
letter before the expiration of the time period. And in the
letter--and I am going to put the letter in the record--he
says: ``Dear Mr. Speaker and Mr. President, the President Pro
Tem in the Senate, on March 21, I reported to the Congress that
the United States, pursuant to a request from the Arab League
and authorization by the United Nations Security Council, had
acted 2 days earlier to prevent a humanitarian catastrophe by
deploying U.S. forces to protect the people of Libya.''
He then goes on. I am not going to read the whole thing.
But then he says: ``Thus, pursuant to our ongoing
consultations, I wish to express my support for the bipartisan
resolution drafted by Senators Kerry, McCain, Levin, Feinstein,
Graham, Lieberman which would confirm that the Congress
supports the U.S. mission in Libya and that both branches are
united in their commitment to supporting the aspirations of the
Libyan people.''
Now, he asked us to do that before the expiration of the 60
days. But we did not do it. Do not blame the President. The
Congress of the United States did not 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. You know, let us be
honest about this.
Senator Corker. Well, I am being very honest, and I think
that parsing words----
The Chairman. Well, you are not being honest.
Senator Corker. And I have the ability to express my
opinion just like you do and to use facts just like you do. And
if you want to get into a debate about this right now, I am
glad to do that. I would like----
The Chairman. Senator, you are not letting me finish my
point which is that you are saying the President violated the
process here and did not come to the Congress. He did come to
the Congress. He sent us a letter requesting us to do the
authorization and we did not do it. That is the simple fact
here.
Moreover, there is a constitutional question here because
in paragraph (b) of the War Powers Act, it says that the
President shall terminate any use of the United States Armed
Forces with respect to such report submitted unless the
Congress has either declared war or has enacted a specific
authorization within the 60-day period. So if Congress does not
act, Congress can, in effect, by its lack of action challenge
the constitutional right of the President to do something. That
is, in effect, a constitutional standoff.
And any Senator could have gone to the floor of the U.S.
Senate with a resolution during those 60 days. No Senator chose
to do so.
So all I am saying is I am not going to sit here and let
everybody throw the dart at the White House saying the
President violated this and that when he was the first
President to ever say I accept the constitutionality of the War
Powers Act. Second, he sent us a letter before the expiration
of the time asking us to pass the authorization. And third, I
will say this to you as the chairman. I went to the leaders.
Nobody wanted to do it. So here we are.
So the real relevant question here is whether or not--I
agree with you. I think there are some serious constitutional
questions about Predators, how do they fit, and I think Legal
Adviser Koh has accepted that. We need to exercise our
responsibility to modernize this.
But the mere fact that hostilities are taking place--and
they are--does not per se mean United States Armed Forces have
been introduced into those hostilities if they are not being
shot at, if they are not at risk of being shot at, if there is
no risk of escalation, if the mission is narrowly defined.
So I know none of us want to get trapped in the legalese
here and we want to try to do this in the right way. But it is
just wrong to suggest that somehow the President went outside
the constitutional process here when, in fact, Congress--us--
have done nothing within those 60 days to either authorize it
or declare war or not.
[The May 20, 2011, letter from the President on the War
Powers Resolution follows:]
Dear Mr. Speaker and President Pro Tem: On March 21, I reported to
the Congress that the United States, pursuant to a request from the
Arab League and authorization by the United Nations Security Council,
had acted 2 days earlier to prevent a humanitarian catastrophe by
deploying U.S. forces to protect the people of Libya from the Qaddafi
regime. As you know, over these last 2 months, the U.S. role in this
operation to enforce U.N. Security Council Resolution 1973 has become
more limited, yet remains important. Thus, pursuant to our ongoing
consultations, I wish to express my support for the bipartisan
resolution drafted by Senators Kerry, McCain, Levin, Feinstein, Graham,
and Lieberman, which would confirm that the Congress supports the U.S.
mission in Libya and that both branches are united in their commitment
to supporting the aspirations of the Libyan people for political reform
and self-government.
The initial phase of U.S. military involvement in Libya was
conducted under the command of the United States Africa Command. By
April 4, however, the United States had transferred responsibility for
the military operations in Libya to the North Atlantic Treaty
Organization (NATO) and the U.S. involvement has assumed a supporting
role in the coalition's efforts. Since April 4, U.S. participation has
consisted of: (1) non-kinetic support to the NATO-led operation,
including intelligence, logistical support, and search and rescue
assistance; (2) aircraft that have assisted in the suppression and
destruction of air defenses in support of the no-fly zone; and (3)
since April 23, precision strikes by unmanned aerial vehicles against a
limited set of clearly defined targets in support of the NATO-led
coalition's efforts.
While we are no longer in the lead, U.S. support for the NATO-based
coalition remains crucial to assuring the success of international
efforts to protect civilians from the actions of the Qaddafi regime. I
am grateful for the support you and other Members in Congress have
demonstrated for this mission and for our brave service members, as
well as your strong condemnation of the Qaddafi regime. Congressional
action in support of the mission would underline the U.S. commitment to
this remarkable international effort. Such a Resolution is also
important in the context of our constitutional framework, as it would
demonstrate a unity of purpose among the political branches on this
important national security matter. It has always been my view that it
is better to take military action, even in limited actions such as
this, with Congressional engagement, consultation, and support.
Sincerely,
Barack Obama.
Senator Corker. Well, Mr. Chairman, I would just respond
that I think the central element of my argument to Mr. Koh who,
by the way, I very much respect his intellect--I do not respect
his judgment in this particular case. My argument is around the
issue of hostilities. That is what the focus of my argument
was, and by narrowly defining that or being cute where you say
I support the constitutionality of the War Powers Act, but on
the other hand, since we are not really involved in
hostilities--wink, wink--we really do not need to deal with
Congress. That is the part. That just happened on the 15th.
I do not think anybody in this body had any idea that the
President would take such a narrow, narrow interpretation of
hostilities. I do not think anybody knew that. I think it has
been a shock to all. I think the President wishes he had
handled this differently because what has happened is by being
cute, they have introduced a whole other debate here that
should not be taking place. And my guess is they might have
gotten overwhelming support for a limited operation, whether I
support it or not. What they have done by trying to have it
both ways, which is what they did with the June 15 letter, is
interject a debate that has to do with credibility, has to do
with integrity, and to me is a great disservice to this
country.
So I stand by what I just said. It is factual. And I will
be glad to debate this all day long.
The Chairman. Well, hopefully, we do not have to do that at
2:30 this afternoon. I am sure that we can do it without
debating it all day long.
But I do think that it is important. I did hear you say,
quote, rushing to give a resolution and I heard you say the
Senate is irrelevant. And I think that when you measure those
things against the reality of what the President asked us to
do, any of this issue is really because the Senate has been
having a very difficult time getting anything done lately.
Senator Webb.
Senator Webb. Thank you, Mr. Chairman.
I would like to express my admiration for Senator Corker
showing me how to turn 7 minutes into 25 minutes. [Laughter.]
I have been trying to figure out how to get more time on
this committee for 4\1/2\ years.
I would just like to say a couple things very quickly in
reaction to the exchange that just took place. One of them is
that whether or not the President consulted with certain people
in the Senate, and whether or not there was a request for us to
validate the actions, the issue before us right now is this
administration is coming forward and saying the War Powers Act
does not apply in this situation because of their very narrow
and, in my opinion, contorted legal definition of
``hostilities.'' That is the issue that is before us--not the
other one.
I would just like to say I think the most unusual part of
this decision was not simply the issue that Senator Corker
raised, which is a very important issue in terms of the use of
indirect fire, but the use by a President of a very vague
standard that he or she can unilaterally inject military force
into situations around the world based on a vague standard of
humanitarian assistance. We have not seen that before. And that
is something that demands a certain amount of accountability.
This was the major reason that I started to become concerned
with the way this operation was unfolding.
But I will say when you have an operation that goes on for
months, costs billions of dollars, where the United States is
providing two-thirds of the troops even under the NATO fig
leaf, where they are dropping bombs that are killing people,
where you are paying your troops offshore combat pay--and there
is a prospect of escalation. It has something I have been
trying to get a clear answer from with this administration for
several weeks now, and that is the possibility of a ground
presence in some form or another once the Qadhafi regime
expires. I would say that is hostilities.
Now, Mr. Koh, there was a debate inside the administration
on this definition. Was there not?
Mr. Koh. The President took the position and that is the
position----
Senator Webb. Yes, but there was a debate as to the issue
of whether this constituted hostilities, and we have read about
it in the paper.
Mr. Koh. Well, Senator----
Senator Webb. Just yes or no.
Mr. Koh. I cannot comment on----
Senator Webb. Well, for the record, there is plenty of
reporting that there was a good bit of debate as to whether
this was the right way to go.
What do you make of the fact that military offshore are
receiving combat pay?
Mr. Koh. They are also receiving it in Burundi, Greece,
Haiti, Indonesia, Jordan, Montenegro, Saudi Arabia, Turkey, and
dozens of other countries under the same provision. It does not
mention hostilities, and I do not think anybody believes that
we are in a War Powers Resolution situation in those countries.
We are talking about something different.
I think the point, Senator, which--these are hard
questions.
Senator Webb. I do not mean to interrupt you, but I really
only have about 7 minutes here.
The Chairman. I will give you time. These are important
issues.
Senator Webb. All right. Then go ahead and finish your
thought.
Mr. Koh. Imminent danger pay is given on a different basis
than hostilities. And so one statute applies to one and one
applies to the other.
At the end of the day, this is a question of statutory
interpretation. It is not the administration that is saying
that drones are not covered. The question is whether when you
have an unmanned aerial vehicle, that is an introduction of a
U.S. armed force in a statute that was drafted by Congress. So
if that language no longer works, then----
Senator Webb. Well, in general, because if you are engaged
in a Vietnam type military operation, which I was, you have
certain support elements that are providing indirect assistance
to the people who are putting bullets on the battlefield. I
really do not see any distinction here in the Vietnam
environment, or a journalist in Afghanistan, or if was a
journalist in Beirut. Not everybody is a trigger puller. The
definition that you are using that makes a distinction between
aircraft that are refueling the bombers or conducting
intelligence activities or surveillance is an artificial
distinction.
Mr. Koh. Well, Senator, nobody is saying that something
replicating Vietnam at this moment would not be----
Senator Webb. No; I am not talking about Vietnam per se. I
am talking about multiple environments: Afghanistan, same.
Beirut--same thing.
Mr. Koh. I think you make the most important point of all,
Senator. These are questions of judgment. In your role in the
Navy, you played that role of exercising that judgment. It is
not a mechanical formula. And the question is whether the
mission, when it has been shaped this particular way in this
particular setting with this particular risk of escalation,
exposure, which are very low----
Senator Webb. You have repeated that language several times
today. I understand your point on that language.
Let me ask you another question because it is very
important.
We still have not severed relations with the Qadhafi
government. Or have we? If we have, it has been in the last
week or so. We have suspended our relations with Qadhafi
regime, but we have not severed relations. So technically we
still recognize this government. Would that be a correct
interpretation?
Mr. Koh. Well, Senator, we are trying to hold them
responsible----
Senator Webb. No, no. Give me a legal answer. We have not
severed relations. Is that correct?
Mr. Koh. And the reason for that----
Senator Webb. No. Is that correct?
Mr. Koh. The relations have been suspended.
Senator Webb. They are suspended but they have not been
severed.
Mr. Koh. That is correct.
Senator Webb. So what is the constitutional limitation on
the assassination of a head of state?
Mr. Koh. The assassination of a head of state is restricted
by Executive order. That Executive order is enforced. Admiral
Locklear has made clear that despite press reports, he has not
expressed a view.
Senator Webb. So the Executive order would say that there
is preclusion against the assassination of a head of state.
Mr. Koh. Well, the wording of it is an unlawful act, and
the interpretation of the assassination ban would depend on the
facts of the situation.
But I think the reason for the lack of severing is so that
the Qadhafi government can remain responsible under
international law for those things that Qadhafi is doing by
using the forces of the government.
Senator Webb. I understand that. I understand that. You
cannot distinguish that out on this point any more, quite
frankly, I think it is relevant to distinguish out hostilities
based on these other realities. And, there are people who are
going to have differences of opinion about that. But I wanted
to make that clear because there is a lot of talk up here about
the way in which Qadhafi should exit. Nobody up here wants him
to remain, but the moral standard that we set on issues like
this is the same one that we should expect and it is a point we
need to be thinking about.
Thank you, Mr. Chairman.
The Chairman. I think it is a good point, Senator Webb, and
I am glad you raised it and I appreciate the line of
questioning.
I do not want you to feel cut off because there are only
two other Senators. Obviously, the purpose of having the
limitation is when everybody is here, but if there are four or
five of us, I am very happy to let Senators go longer. So I
want to make sure you feel----
Senator Webb. Thank you, Mr. Chairman. I feel well taken
care of today. Thank you.
The Chairman. Thanks. I appreciate it. [Laughter.]
The Chairman. Senator Lee.
Senator Lee. Thank you so much for joining us today.
I want to start out by thanking the members of our Armed
Forces, those who sacrifice much in order to place themselves
in harm's way to stand up for American national security. I
appreciate them.
The issue we are discussing today does implicate a number
of questions that are important to American national security
especially when we consider the fact that there are lots of
places in the world where our national security is in one way
or another placed in jeopardy by some of the things that people
are doing and things that people are saying. So I think it is
appropriate that we have this discussion because we want to
make sure that when we deploy these people, these brave young
men and women who serve us and serve us so well, that we are
doing so in a way that maximizes their utility to protecting
Americans at home.
The first question I would like to ask you relates to the
definition of the term ``hostilities'' as used in section 1541
and elsewhere in the War Powers Resolution. How do you define
the term ``hostilities'' as used in the War Powers Resolution?
Mr. Koh. As our testimony sets forth, the effort to define
it--and this is described in the descriptions of the
conversations of Senator Javits, the sponsor, et cetera, was to
leave the matter for subsequent executive practice.
Senator Corker had mentioned the House conference report
had originally proposed the term ``armed conflict.'' There was
an irony in the question which is that ``armed conflict'' is a
term of international law. They deliberately did not import
that term into this statute precisely so that international law
would not be the controlling factor.
And the net result was that in 1975 under the Ford
administration--and you know it well because of service that
your own family did in that administration--the Congress--and
this is in the first footnote of my testimony--invited the
legal adviser, my predecessor, Monroe Leigh, to come forward
with a definition of hostilities from the executive branch,
applying exactly the judgments that we are describing here. And
in my testimony, I describe the response that was given by Mr.
Leigh and his coauthor in which they essentially set forth a
standard--and this is on page 6 of the testimony--in which they
said the executive branch understands the term ``to mean a
situation in which units of the U.S. Armed Forces are actively
engaged in exchanges of fire with opposing units of hostile
forces,'' and then said that the term should not include
situations which were ones in which the nature of the mission
is limited, where the exposure of U.S. forces is limited, where
the risk of escalation is limited, or when they are conducting
something less than full military encounters as opposed to
surgical military activities.
Senator Lee. Where is that from, Mr. Koh?
Mr. Koh. It is described on page 6 of my testimony and it
is in the first footnote, the letter from State Department
Legal Adviser Monroe Leigh with regard to the Mayaguez incident
to the International Security and Scientific Affairs of the
House Committee on International Relations.
It is an important document, Senator, because Congress
acknowledged that it did not know what hostilities meant from
the legislative history alone, and so they invited the
executive branch to give clarification.
Senator Lee. And I do not disagree with the broader
definition, but like so many definitions, that one has been
severely undermined and here, I believe arguably, vitiated by
the exceptions to it. Does it not strike you as something that
is a little bit dangerous to say? Even when we have our own
armed services or armed personnel firing upon the military
establishment, the radar systems, and other components of a
foreign nation's defense system on their foreign soil,
regardless of whether we have got boots on the ground, it seems
to me to be hard to say that that does not involve hostilities.
Given the limitations on our time, though, I would love to
take a step in a different direction and then come back to
this, if we have got time afterward.
In your opinion, is this question, the question of the
constitutionality of the War Powers Resolution, one that
logically could or ever would be resolved in any Article III
court proceeding in light of, A, the nonjusticiable political
question doctrine and, B, immunity that might be enjoyed by one
or more parties to any suit that might be brought?
Mr. Koh. I think, Senator, it is a good question. I think
it is highly unlikely that it would be justiciable. There was
in the Vietnam era a number of famous cases, Holtzman v.
Schlesinger, where some cases did get into court. But the
general pattern of the case law since then has been that these
suits have been dismissed on some preliminary ground.
But going to the earlier point which you made, which is
when someone is firing, when there are boots on the ground,
does that per se rise to the level of hostilities, the
testimony that I gave points to in prior administrations in
situations in Lebanon, Grenada, the Persian Gulf tanker
controversy, Bosnia, Kosovo, all were circumstances in which
there were more casualties, more boots on the ground, many,
many hundreds of more munitions dropped, and those were not
deemed, under those circumstances to be hostilities. It is on
that basis that we have come here saying that we think that
this factual situation, unique factual situation, limited in
these ways fits within the frame of hostilities as has been
understood that therefore it does not trigger the 60-day limit.
A final point, and I think it is an important one to
emphasize. We are not here----
Senator Lee. Actually, I know you have got a final point
that you want to make. I do have a final question that I really
want to ask.
Mr. Koh. Please.
Senator Lee. Let us assume for purposes of the discussion
here that we are dealing with hostilities. If we were dealing
with hostilities, if you agreed with me that we were dealing
with hostilities, under section 41, would the President not
have to justify, in addition to the 60-day requirement, the
other timing-related requirements, the reporting requirements,
consultation and so forth--wouldn't the President also have to
articulate a military justification for our involvement in
those hostilities based on the language of section 1541,
meaning that they are justified either by some form of
statutory authorization from Congress, by declaration of war,
or by a national emergency, not just any national emergency but
one created by an attack on the United States, on its
territories or possessions or on its armed forces? Wouldn't
that be the President's duty?
Mr. Koh. Well, the President has complied with the
reporting provisions and, in fact, past administrations have,
by and large, responded----
Senator Lee. Yes, sir, but I'm not talking about the
reporting obligations. I am talking about the 1540, the
requirement in section 1541 that recognizes that the
constitutional power of the President, the Article 2 Commander
in Chief power of the President as Commander in Chief to
introduce the United States Armed Forces into hostilities, are
exercised only pursuant to a declaration of war, statutory
authorization, or just national security emergency created by
an attack. That's what I'm talking about.
Mr. Koh. Well, Senator, as you can imagine, these are
questions that have been debated for years. That is a statement
by the 1973 Congress about what it thinks are the limitations
of the President's capacity to introduce forces. Take, for
example, Professor Louis Hankin of Columbia Law School. In his
book ``Foreign Affairs and the Constitution'' describes a range
of military actions less than hostilities and less than war
which have been done outside the scope of that. So the question
has always been, is that an exhaustive list or is it not an
exhaustive list?
But I think the critical point here is that what we are
arguing here simply is the provisions of the statute from our
perspective are not triggered, therefore we don't even get to
the question of whether the constitutionality of the statute is
in play. We have no intention in this situation to raise that
issue, and we are operating as a matter of good faith statutory
interpretation based on the very unusual facts present here.
Senator Lugar [presiding]. Thank you very much, Senator
Lee.
Senator Coons.
Senator Coons. Thank you. I want to thank Chairman Kerry
for his leadership in convening now five different hearings
since February on the actions in Libya, and I want to thank
Senator Lugar and others for raising, I think, critical
questions surrounding our engagement in Libya and the questions
that pertain to the War Powers Resolution.
In the face of the atrocities committed by Qadhafi earlier
this year, the United States I believe did have an obligation
to protect the Libyan people from the very real threat of
massacre, and I supported and applauded the passage of U.N.
Resolution 1973 to protect Libyan civilians, and was encouraged
by the strong international consensus surrounding this issue
and have so far supported U.S. military engagement as one
component of a broad multilateral commitment led by NATO.
At the same time, I have real and growing concerns about
the approach to the war powers issue, and in particular about
the precedent that may be set here.
So, Mr. Koh, it's wonderful to be with you again. I have,
as always, found you an able and compelling advocate today. I
am reminded of an old saw in legal practice. When the law is on
your side, argue the law. When the facts are on your side,
argue the facts. When neither is on your side, pound the table.
And I note that today you've argued the facts. You have, I
think, as ably as one possibly could, explained a very narrow
reading of hostilities, and a number of the Senators who have
spoken before me have reflected the fact that our constituents
are finding very real tension between a commonsense
understanding of hostilities and the exercise of statutory
construction in which you are engaged, appropriately in your
role, to define these four narrowing factors of mission,
exposure, means, and risk of escalation.
The only part of Senator Corker's comments to you that I
would in any way agree with would be the concern about
statistics and the use of a percentage justification. Other
than that, I frankly find your focus on the unique facts of
this current Libyan situation largely compelling, and I am
hopeful that later today our committee will move to make
appropriate resolution to this ongoing impasse between the
administration and the Senate.
You repeatedly refer to one of the good outcomes of the War
Powers Resolution being that it promotes interbranch dialogue,
and I suspect you've gotten a great deal of that dialogue
today. I have a few questions I'd be interested in hearing your
input on, understanding and respecting the difference in our
constitutional roles.
One would be just--and I'd urge you to answer this in the
context of the other two. What else could we and should we have
been doing between the branches to more effectively foster that
dialogue? As you know through your able scholarship in this
field, the War Powers Resolution is a rough-hewn artifact of
its time. I have been very concerned that through a lack of
respect and application it has drifted into near irrelevance,
and I was encouraged to hear the chairman's comment and your
testimony that strongly suggests that this administration
affirms its constitutionality, its relevance going forward, and
I hope would like to work in partnership to find ways to make
it an effective tool of interbranch dialogue.
So first, in your response to Senator Lugar, you said that
drones don't get a pass under the War Powers Resolution. You
also made, I think, telling reference to cyber warfare. The
Department of Defense just issued a new statement on cyber
warfare policy. Since you've obviously given great thought to
these questions over many years, how might you suggest that we
update the War Powers Resolution to reflect the reality of
modern warfare, one in which many of the factors cited by your
predecessor in your current role could not have anticipated,
and to reflect some of the points raised by Senator Webb, ones
in which American soldiers would not be exchanging fire, would
not be directly at risk, where the threat of escalation might
be quite limited but where nonetheless, not just in a
commonsense understanding of hostilities but in a very real
understanding of hostilities, we would be engaged in war?
That is my main concern of the, I think, strained and
somewhat narrow reading of hostilities that we have in front of
us today. How would you update it to take account of these very
modern developments in the war capabilities of our Nation?
Mr. Koh. Thank you, Senator Coons, and I appreciate your,
as always, thoughtful remarks.
No. 1, obviously, if we are concerned about unmanned uses
of weapons that can deliver huge volumes of violence, a statute
which only deals with the introduction of U.S. Armed Forces
does not address that situation. I don't blame anybody. At the
time the law was passed, they were thinking about Vietnam. They
weren't thinking about drones or cyber. So that would be one
possibility to change the law to address realities of modern
conflict.
Second, the War Powers Resolution functions in a way to
promote dialogue by a deadline. While it's unclear what
triggers the deadline, and where the state of affairs that's
supposed to trigger the deadline, namely hostilities, is
deliberately vague, which puts a later Congress and President
in a position of trying to figure out when the clock began and
what the conditions are, and then to decide whether the urgency
of a deadline actually promotes a dialogue.
In a book I wrote a number of years ago, I actually
addressed that by saying you could have a statute that directly
requires dialogue between Congress and the executive branch,
particularly, say, a group of senior leaders of Congress, the
Group of 16. That was, in fact, embodied in the Byrd-Nunn-
Warner-Mitchell bill, which was discussed for a long period of
time.
Quite recently, a very distinguished commission led by
former Secretary of State Jim Baker, former Secretary of State
Warren Christopher, who then passed away, and Lee Hamilton,
proposed another way to consider the question.
A final point is, as much as any of you, including Senator
Corker, I agree that this is not a mathematical calculating
machine or a mechanical approach. It requires judgment, and
that therefore it is important, I think, to try to get away
from triggers that rely on false metrics toward things that
actually reflect judgments made through interbranch dialogue.
And I do think the process here is putting us to the question.
If the legal issue is resolved one way or the other, the choice
still remains what to do about the civilians in Libya.
Did the 1973 Congress really intend that they be left
unprotected after 60 days, or did they not think about the
situation? This goes back to the point that I quoted from my
own writing. The major structural flaw of the War Powers
Resolution has been that it requires an automatic termination
after 60 days without Congress ever making a specific judgment
in a particular case as to whether this is a case in which
they'd like to authorize force or like affirmatively not to
authorize force, and you cannot run these kinds of things by
auto-pilot. It has to be done through judgment, political
judgment of the kind that you exercise every day.
Senator Coons. If I might, I think that particular
provision within the act, after just 6 months here, one that
compels an action through the inaction of the Senate, may seem
to have wisely reflected the inclination toward inaction rather
than action in this particular body.
I have one other question I'd like to get to, if I might,
Senator, which is just on the question of expropriating funds,
or taking funds of the regime with which we have suspended
relations but where we haven't yet recognized the TNC. What in
your view is the legal precedent for expropriating the funds?
What's the foreign policy implications?
I was struck by the fact that counsel who serves me on the
Judiciary Committee identified a provision of the Patriot Act
with which I was previously unfamiliar that claims it is legal
for the United States to expropriate foreign assets if we're
involved in armed hostilities with a foreign sovereign. And
what, if any, tensions do you see between the definition of
hostilities here in the War Powers Resolution and under the
Patriot Act, and what do you think are the challenges we might
be raising for the United States in the future given--excuse
me, Senator--given the likelihood that we're going to proceed
to in some ways expropriate and reallocate funds that are
currently, at least legally, controlled by the Qadhafi regime?
Mr. Koh. It's an excellent question, Senator. The vesting
legislation that has been proposed is designed to address the
question precisely because under the International Emergency
Economic Powers Act was designed as a freeze, not seize. Were
there congressional authorization of the action here, arguably
you could proceed under the provision you've described for
vesting. There's still a question under international law about
vesting because expropriations, as you know from the Cuban
example and others, raise questions of international challenge.
I do think that the best approach is to enact the vesting
legislation, which I think, instead of putting it again into a
past historical frame, is a specific application of
congressional judgment to deal with this situation that's
before you now and which clearly calls for some consideration
of how to give resources to the TNC and the people of Libya.
Senator Coons. Thank you for your testimony today, and I
look forward to continuing to work with you on these very
difficult issues.
Mr. Koh. Thank you, Senator.
Senator Lugar. Thank you, Senator Coons.
Senator Risch.
Senator Risch. Thank you, Mr. Chairman.
Mr. Koh, I've been watching the fray from afar on the TV
broadcast, and I'm intrigued by the creative explanations that
we've had here today.
Let me ask you this. I want to give you a quote from then-
Senator Obama in December of 2007, and he said, ``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.''
Now, I've heard the discussion of that. Can you give me a
simple answer? Is that still his position?
Mr. Koh. Well, the key word is ``military attack.'' Is that
from the Boston Globe, Senator?
Senator Risch. You know, this was widely disseminated at
the time. It wasn't just one publication. It may have
originated there; I'm not sure. But you're right, this is how
many angels can dance on the head of a pin when you're talking
about, well, is it military attack, is it hostilities, is it--
whatever you want to call it. But it seems to me he was pretty
clear in this statement. Is this still his position?
Mr. Koh. Well, Senator, as I understand it, there were a
series of questions posed to various candidates and answered by
their campaigns. My own view of that phrase--I was not involved
with the campaign--is that it is an overly limited statement of
the President's constitutional authorities. I think if instead
of the word ``military attack'' it says ``make war,'' that
would clearly be a correct statement of law.
Senator Risch. Make war? Hostilities? Military attack? This
is all the same thing, isn't it?
Mr. Koh. No, Senator. ``Make war'' has particular meaning
under Article 1 of the Constitution.
Senator Risch. Are we making war on Libya?
Mr. Koh. We are not, not for purposes of the Constitution,
and I set that forth on page 13 of my testimony.
Senator Risch. Is this or is this not the President's
position at this time, this statement?
Mr. Koh. The position of the President with regard to this
action is set forth in my testimony in the position we're
taking here.
Senator Risch. Can you give me a yes or no? Is this or is
this not the President's position at this time?
Mr. Koh. Well, the--I didn't hear the quote clearly enough,
so----
Senator Risch. All right. Let me try it again. ``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 imminent threat to the
Nation.''
Mr. Koh. I don't think that's legally correct, and I don't
think that's----
Senator Risch. No, no. Mr. Koh, I'm not asking about
legally correct. Is this or is this not the President's
position today?
Mr. Koh. I have not asked, but I would be very surprised if
it's his position because I do not believe it to be legally
correct or shared by those in the administration who are legal
experts on this issue.
Senator Risch. I'm not talking about that. I'm talking
about the President of the United States. Is this or is this
not his position today?
Mr. Koh. I don't know, Senator Risch. I haven't asked him
that question. I do believe that the same rules apply to
Presidents of both parties, and I do believe that the general
understanding of the constitutional structure would be that
that is too limited a statement for whoever is President.
Senator Risch. As you know, President Obama's predecessor,
for every conflict that occurred under his watch, he came to
Congress and asked for authorization. You're aware of that, of
course.
Mr. Koh. I think the President George W. Bush came with
regard to 9/11, the authorization of use of military force with
respect to al-Qaeda/Taliban-associated forces, and he came with
regard to Iraq.
Senator Risch. Notwithstanding all these other explanations
and arguments you've made, don't you agree with me that that
would be a really, really good idea, to come to Congress and
ask for that authorization under the circumstances?
Mr. Koh. My understanding, Senator, is that the
administration has gone back to March 23, expressed that it
would welcome the support. It has also taken the position from
the beginning that it's acting consistently with the War Powers
Resolution.
I do think you are putting your finger on the important
question, which is the debate over the law can go on forever,
but there is an important and urgent question, which is what
happens to the civilians of Libya, and that's a decision that
can be made by this body, this committee, and then by the
Senate as a whole.
Senator Risch. Well, and of course, you know, you can go
beyond that, too. You've talked about the citizens of Libya,
but we've also got a really serious situation in Syria right
now. Indeed, the Syrians aren't even armed and they're being
attacked by their government, versus Libya, where there's
actually armed conflict going on. You would agree with that,
correct?
Mr. Koh. Senator, this is an exciting time at the State
Department. What can I say? There is only one of these
countries with respect to which there is a U.N. Security
Council and a NATO mission of this level of detail with this
kind of designed roles. And so the analysis that we're
describing applies to the Libyan situation.
Senator Risch. And my point is it deserves a debate that
the American people can hear. Is that fair enough?
Mr. Koh. The more dialogue and debate on these matters of
life and death, I think the better for all of us.
Senator Risch. Thank you. Thank you, Mr. Chairman.
Senator Lugar. Thank you very much, Senator Risch.
Senator Shaheen.
Senator Shaheen. Thank you, Mr. Chairman, and thank you to
you and Senator Kerry for holding this hearing today.
Mr. Koh, we appreciate your being here. I think I'm last,
so hopefully there's not too much additional time that you'll
be required.
It was recently reported that the U.S. admiral in charge of
NATO Joint Operations Command stated--and I'm not stating this
exactly, but he essentially said that the removal of the chain
of command was consistent with the justification to protect
citizens. Do you believe that that statement is consistent with
the U.N. Security Council resolution, and that NATO troops, if
they're actively seeking to topple Qadhafi militarily, that
that's consistent with the U.N. resolution?
Mr. Koh. Senator, the U.N. resolution calls for the
protection of civilians in civilian-populated areas. As I
understand it, NATO does not target individuals. They've made
it clear that they are not targeting individuals.
Earlier, I think it may have been before you came in, I
pointed out that there was a report that an admiral had made a
comment about the real mission being to target Qadhafi. The
admiral has on the record in a public affairs statement made it
clear that he did not say that, and that's not, in fact, the
rules of engagement that they're following.
Senator Shaheen. OK. Just to follow that point a little
further, though, how would you differentiate between degrading
the Qadhafi regime's ability to attack civilians and actively
targeting Qadhafi himself? Is there a line there that you can
draw, or----
Mr. Koh. Most of it is focused in the operational terms as
I understand it, Senator, on the destruction of equipment,
radar, antiaircraft. Antiaircraft can be mounted on both fixed
and mobile devices, and that the targeting has been directed at
that command and control.
I note in my own testimony on footnote 5 that Qadhafi's own
forces' rules of engagement seem to authorize them to
indiscriminately attack civilians, and that therefore if they
have the apparatus by which they can do that, large numbers of
civilians would be killed and we would not be serving our
mission, which is to protect the civilians in the civilian-
populated areas.
But with regard to the question of targeting of leaders, I
think the important point to emphasize from the beginning has
been that this is a multitool operation involving diplomacy,
development, assets freezes, and a unanimous referral of this
to the international criminal court, and that in fact arrest
warrants were issued yesterday.
So as was the case with Slobodan Milosevic, a possibility
of removal is through an international criminal trial, not
necessarily through the tools of conflict, and that President
Milosevic, sometime after the Kosovo episode, went to The
Hague, where he was tried, and that is in fact where he died
while a prisoner.
Senator Shaheen. Thank you. I'd like to ask some questions
now relative to the TNC, the Transitional National Council, and
what the thinking is of the Justice Department relative to
recognizing the TNC formally. If we were to do that, does this
have an impact on our policy, our legal policies with respect
to Libya; for example, how we might deal with any assets?
Mr. Koh. Well, Senator, international law focuses on the
question of recognition, and recognition tends to follow facts
on the ground, particularly control over territory. As a
general rule, we are reluctant to recognize entities that do
not control entire countries because then they are responsible
for parts of the country that they don't control, and we're
reluctant to derecognize leaders who still control parts of the
country because then you're absolving them of responsibility in
the areas that they do control.
So, but recognition is not the only tool. There are ways to
acknowledge that a particular entity is the legitimate
representative of the people, which we have done and other NATO
partners have done, and that will obviously then go to the
question ultimately of the extent to which the various frozen
assets can be made available for the new Libya as opposed to
Qadhafi's old regime and way of doing business.
Senator Shaheen. And with respect to those frozen assets,
how are we dealing with those assets and the TNC? Are there any
restrictions that we've placed on whether they could be used by
the TNC, either now or should the TNC gain control of the
country?
Mr. Koh. As you know, Senator, before you is vesting
legislation, which was a particular proposal to try to address
that question. Meanwhile, there are regular contact group
meetings attended by the Secretary in which other countries
have made available resources to the TNC bank accounts, et
cetera. So the process of supporting the TNC is a long-term
process that requires close cooperation among allies, just as
this military mission does.
Senator Shaheen. And the access to the bank accounts that
you refer to, are those bank accounts that would be considered
to be part of the frozen assets?
Mr. Koh. Well, it's always a complicated situation when
bank accounts are held by one regime but they appear to be for
the purpose of a broader group of individuals. Senator Lugar
faced this issue in the Philippines. It happens in many
circumstances. And so exactly sorting out who is entitled to
gain access to the frozen resources is an exercise in which
we're actively engaged.
Senator Shaheen. Thank you.
The Chairman [presiding]. Thank you, Senator Shaheen.
We are running up against a couple of time conflicts here.
So there is going to be a vote, perhaps several votes. Some of
them may turn into voice votes around 12:10.
So, Legal Adviser Koh, we are going to excuse you at this
point in time, to your chagrin and everlasting sorrow, I know.
[Laughter.]
And we're going to try and get both of our scholars,
Professor Spiro and Louis Fisher, to be able to get through
their opening testimonies, and then--and you can begin if you
want to collect your papers, Legal Adviser, and we'll try to do
the transition as seamlessly as we can here.
I want to say to both of our members of Panel 2, first of
all, I apologize on behalf of the committee for the length of
time the first panel took. But as you both understand, this is
obviously an important topic and we don't want to give short
change to your testimonies.
Therefore, what we'd like to do I think today is get your
testimony on the record following Harold Koh. I notice one of
you is in Philadelphia; the other is nearby. If we could and
need to call you back in order to do this, perhaps after the
break and finish it, leading off with your panel, we would like
to do that, unless the Senate floor process cooperates in a way
that lets people get back here after the vote and opening, and
we won't know that until we know what happens on the floor.
So if you could bear with us on that, we'd like you to come
to the table now. And, Legal Adviser Koh, thank you for coming
up today and being part of this discussion. It's a very
important one. We appreciate it.
So, Mr. Louis Fisher and Mr. Peter Spiro, if you would both
take your places. We look forward to your testimony. As you
know, you can place your full testimony in the record as if
read in full and summarize. And again, very much we are
grateful for your patience and for taking time to be with us.
I don't know if you have an arrangement as to who is going
to lead off, but however you want to go. Go ahead. Thanks.
Mr. Fisher.
STATEMENT OF LOUIS FISHER, SCHOLAR IN RESIDENCE, THE
CONSTITUTION PROJECT, SILVER SPRING, MD
Mr. Fisher. Thank you very much for a very productive last
2 hours. I learned quite a bit.
I have a number of things I'll say to summarize my
statement. I wanted to pick up from what Senator Lugar said
about what the Framers were concerned about Executive wars,
that they had an incentive and a motivation. And many people
today think that whatever the Framers thought in the 18th
century has no application to the 20th and 21st centuries. My
judgment is that what the Framers were worried about,
Executives getting into wars that were damaging to the country
in terms of lives lost and fortunes squandered, is particularly
relevant today after we've seen some of the wars, the very
costly ones, Vietnam, Korea, and I think the second war in
Iraq.
So I think the Framers had a judgment about human nature,
and human nature hasn't changed over that period of time. So
I'm very much for the proposal that the decision to use
military force against another nation that has not attacked us
and has not threatened us is for Congress, and I'll underscore
that.
And I also want to say that Michael Glennon, who served
this committee for many, many years as legal adviser, basically
did an analysis of the war in Libya and said that the
Constitution ``places the decision to go to war in the hands of
Congress.'' So that's my position. And, in fact, that was the
position from 1789 to 1950. All major wars were either declared
by Congress or authorized by Congress, and 1950, of course, is
when that was broken when President Truman went to war, never
coming to Congress, against Korea. So it's a recent departure
from the Constitution.
I give some examples in the first part of my paper about
Presidents not talking straight. I say, which many people may
find offensive, Presidential double-talk, but in fact that's
what Presidents do. As you know, Truman said it's not a war,
it's a police action. We've seen this for many, many decades,
Presidents not talking straight.
One thing that was not said this morning I don't believe at
all which concerns me is the position by the Obama
administration that they received authorization from the U.N.
Security Council. My position is that the Security Council
cannot authorize any military action, cannot mandate any
military action. If you believe that, then you would have to
say that the U.N. Charter or Treaty transferred Article 1 power
from Congress, not just from future Senates but from the House
of Representatives, and gave it off to some outside body. I
think that's an unconstitutional theme, and I don't think that
you can get any authorization from the Security Council. So
then you have to ask what authorization did President Obama
have for this military activity?
In a May 20 letter to Congress, President Obama said, ``It
has always been my view''--this is not the Boston Globe. This
is May 20, this year. ``It has always been my view that it is
better to take military action, even in limited actions such as
this, with congressional engagement, consultation and
support.'' So that has always been his view.
I think in February, when this began to unwind in Libya, I
think it was his obligation in February to come to Congress and
get that authorization.
The second part of my paper is authorization from NATO. For
the same reason, NATO countries, NATO allies cannot authorize
the United States to take military action. It's the same
problem. NATO is a treaty. Treaties cannot amend the
Constitution, cannot take congressional power and give it to
outside bodies.
I think we've talked a lot here about whether Libya is a
war and whether Libya has any hostilities. In both cases, the
administration takes the position that if U.S. casualties are
low, there's neither war nor hostilities, and that to me is a
very unappealing theory because it means that if you have a
superior force like the United States, you could pulverize a
country, have very few or no hostilities, and there would be
neither war nor hostilities.
That's the position of the administration. I just think
it's an untenable position for any administration to develop
that. If it were, then you could have, once you get rid of your
air defense systems on the ground in Libya, you could bomb from
30,000 feet, you could send in drones, you could do all the
mayhem possible, and you then say no war, no hostilities. If
anyone did that to us, after day one there would be war and
hostilities, which is Pearl Harbor. We didn't ask in Pearl
Harbor whether the Japanese suffered any casualties. We knew
from the first day that that was war.
The last part of my paper gets into this, which is new to
me, the nonkinetic assistance. I think there is kinetic
assistance, and once you give a supporting role to NATO, which
is the administration's position, you are supporting
hostilities. I don't think you can get around that.
The last two things, I talked about S. Res. 85. The Office
of Legal Counsel relied on that. It took 35 seconds to support
on the floor, and a lot of Senators objected that they did not
know how S. Res. 85 had been modified, particularly the no-fly
zone.
And my last comment is again this notion of a mandate. The
administration talks about an international mandate, talks
about the mandate from the Arab League, mandate from the
Security Council, et cetera. President Obama said he acted
militarily in Libya ``with a mandate from the United Nations.''
To me, there is only one permitted mandate under the U.S.
Constitution for the use of military force against another
nation that has not attacked or threatened us, and that mandate
must come from Congress.
Thank you.
[The prepared statement of Mr. Fisher follows:]
Prepared Statement of Louis Fisher
Chairman Kerry, Ranking Member Lugar, and members of the committee,
thank you for the invitation to testify on the Obama administration's
legal and constitutional justifications for military operations in
Libya. I start by examining four claims by the administration: (1) the
President may obtain ``authorization'' not from Congress but from the
U.N. Security Council, (2) the President may rely on NATO for
additional ``authorization,'' (3) military operations in Libya do not
amount to ``war,'' and (4) those operations do not constitute
``hostilities'' within the meaning of the War Powers Resolution. My
statement concludes by turning to (5) the administration's reliance on
S. Res. 85 for legislative support, (6) references to ``non-kinetic
assistance,'' and (7) the claim that the administration received a
``mandate'' to act militarily from such sources as the Security
Council, the ``Libyan people,'' and a ``broad coalition'' including the
Arab League.
presidential doubletalk \1\
Fundamental to the Constitution is the Framers' determination that
Congress alone can initiate and authorize war. To secure the principle
of self-government and popular sovereignty, the decision to take the
country from a state of peace to a state of war is reserved to the
elected Members of Congress. The Framers recognized that the President
could exercise defensive powers ``to repel sudden attacks.'' \2\ John
Jay expressed the Framers' intent with these words: ``It is too true,
however disgraceful it may be to human nature, that nations in general
will make war whenever they have a prospect of getting any thing by it;
nay, absolute monarchs will often make war when their nations are to
get nothing by it, but for purposes and objects merely personal, such
as a thirst for military glory, revenge for personal affronts,
ambition, or private compacts to aggrandize or support their particular
families or partisans. These and a variety of other motives, which
affect only the mind of the sovereign, often lead him to engage in wars
not sanctified by justice or the voice and interests of his people.''
\3\ Professor Michael J. Glennon, who previously served this committee
as Legal Counsel, recently underscored that the Constitution ``places
the decision to go to war in the hands of Congress.'' \4\
---------------------------------------------------------------------------
\1\ For readers who may regard this subhead as disrespectful of
Presidents, doubletalk is defined as ``language that appears to be
earnest and meaningful but in fact is a mixture of sense and nonsense;
inflated, involved, and often deliberately ambiguous language.'' For
Presidential deception on war powers from James Polk to the present,
see Louis Fisher, ``When Wars Begin: Misleading Statements by
Presidents,'' 40 Pres. Stud. Q. 171 (2010), available at http://
www.loufisher.org/docs/wi/432.pdf.
\2\ The Records of the Federal Convention of 1787, at 318-19 (Max
Farrand, ed. 1966).
\3\ John Jay, Federalist No. 4, The Federalist 101 (Benjamin F.
Wright, ed., MetroBooks 2002).
\4\ Michael J. Glennon, ``The Cost of `Empty Words': A Comment on
the Justice Department's Libya Opinion,'' Harv. Sec. J. Forum, April
14, 2011, at 7, available at http://harvardnsj.com/2011/04/the-cost-of-
empty-words-a-comment-on-the-justice-departments-libya-opinion.
---------------------------------------------------------------------------
From 1789 to 1950, all wars were either authorized or declared by
Congress. That pattern of 160 years changed abruptly when President
Harry Truman unilaterally took the country to war against North Korea.
Unlike all previous Presidents, he did not go to Congress to seek
statutory authority. He and his aides did what other Presidents have
done to expand their control over the war power. They go to great
lengths to explain to Congress and the public that what they are doing
is not what they are doing. President Truman was asked at a news
conference if the Nation was at war. He responded: ``We are not at
war.'' A reporter inquired if it would be more correct to call the
military operations ``a police action under the United Nations.''
Truman quickly agreed: ``That is exactly what it amounts to.'' \5\
There are many examples of Presidents and executive officials being
duplicitous with words. A
price is paid for that conduct, both for the President and the country.
Korea became ``Truman's War.''
---------------------------------------------------------------------------
\5\ Public Papers of the Presidents, 1950, at 504. On July 13, at a
news conference, President Truman again called the Korean war a
``police action.'' Id. at 522.
---------------------------------------------------------------------------
During Senate hearings in June 1951 on the military conflict in
Korea, Secretary of State Dean Acheson conceded the obvious by
admitting ``in the usual sense of the word there is a war.'' \6\ What
sense of the word had he been using? Federal and state courts had no
difficulty in defining the hostilities in Korea as war. They were
tasked with interpreting insurance policies that contained the phrase
``in time of war.'' A federal district court noted in 1953: ``We doubt
very much if there is any question in the minds of the majority of the
people of this country that the conflict now raging in Korea can be
anything but war.'' \7\
---------------------------------------------------------------------------
\6\ ``Military Situation in the Far East'' (Part 3), hearings
before the Senate Committees on Armed Services and Foreign Relations,
82d Cong., 1st Sess. 2014 (1951).
\7\ Weissman v. Metropolitan Life Ins. Co., 112 F.Supp. 420, 425
(S.D. Cal. 1953). See also Gagliomella v. Metropolitan Life Ins. Co.,
122 F.Supp. 246 (D. Mass. 1954); Carius v. New York Life Insurance Co.,
124 F.Supp. 388 (D. Ill. 1954); Western Reserve Life Ins. Co. v.
Meadows, 261 S.W.2d 554 (Tex. 1953); and A. Kenneth Pye, ``The Legal
Status of the Korean Hostilities,'' 45 Geo. L. J. 45 (1956).
---------------------------------------------------------------------------
In August 1964, President Lyndon Johnson told the Nation about a
``second attack'' in the Gulf of Tonkin, a claim that was doubted at
the time and we now know was false.\8\ In 2005, the National Security
Council released a study that concluded there was no second attack.
What had been reported as a second attack consisted of late signals
coming from the first.\9\ Johnson used stealth and deception to
escalate the war, forever damaging his Presidency. He learned that
being a War President is not the same as being a Great President.
---------------------------------------------------------------------------
\8\ Louis Fisher, Presidential War Power 129-33 (2d ed. 2004).
\9\ Robert J. Hanyok, ``Skunks, Bogies, Silent Hounds, and the
Flying Fish: The Gulf of Tonkin Mystery, 2-4 August 1964,'' Cryptologic
Quarterly, declassified by the National Security Agency on November 3,
2005, available at http://www.nsa.gov/public_info/_files/
gulf_of_tonkin/articles/rel1_skunks_bogies.pdf.
---------------------------------------------------------------------------
In 1998, during a visit to Tennessee State University, Secretary of
State Madeleine Albright took a question from a student who wanted to
know how President Bill Clinton could go to war against Iraq without
obtaining authority from Congress. She explained: ``We are talking
about using military force, but we are not talking about a war. That is
an important distinction.'' \10\ Iraqis subjected to repeated and heavy
bombings from U.S. cruise missiles understood the military operation as
war. These distinctions can be easily manipulated to meet the political
needs of the moment.
---------------------------------------------------------------------------
\10\ Barton Gellman, ``Students Receive Albright Politely,''
Washington Post, February 20, 1998, at A19.
---------------------------------------------------------------------------
The above examples provide some context for understanding the
efforts of the Obama administration to define and redefine such words
as ``authorization,'' ``war,'' ``hostilities,'' ``nonkinetic,'' and
``mandate.''
1. ``authorization'' from the security council
President Obama and his legal advisers repeatedly state that he
received ``authorization'' from the U.N. Security Council to conduct
military operations in Libya. On March 21, he informed Congress that
U.S. military forces commenced military initiatives in Libya as
``authorized by the United Nations (U.N.) Security Council. . . .''
\11\ His administration regularly speaks of ``authorization'' received
from the Security Council. As I have explained in earlier studies, it
is legally and constitutionally impermissible to transfer the powers of
Congress to an international (U.N.) or regional (NATO) body.\12\ The
President and the Senate through the treaty process may not surrender
power vested in the House of Representatives and the Senate by Article
I. Treaties may not amend the Constitution.
---------------------------------------------------------------------------
\11\ Text of a Letter from the President to the Speaker of the
House of Representatives and the President Pro Tempore of the Senate,
March 21, 2011, available at http://www.whitehouse.gov/the-press-
office/2011/03/21/letter-president-regarding-commencement-operations-
libya.
\12\ Louis Fisher, ``Obama's U.N. Authority?'', National Law
Journal, April 18, 2011, available at http://www.loufisher.org/docs/wp/
authority.pdf; Louis Fisher, ``Sidestepping Congress: Presidents Acting
Under the U.N. and NATO,'' 47 Case Western Res. L. Rev. 1237 1997),
available at http://www.loufisher.org/docs/wp/424.pdf; Louis Fisher,
``The Korean War: On What Legal Basis Did Truman Act?'', 89 Am. J.
Int'l L. 21 (1995), available at http://www.loufisher.org/docs/wp/
425.pdf.
---------------------------------------------------------------------------
In a May 20 letter to Congress, President Obama spoke again about
``authorization by the United Nations Security Council.'' He said that
congressional action supporting the military action in Libya ``would
underline the U.S. commitment to this remarkable international
effort.'' Moreover, a resolution by Congress ``is also important in the
context of our constitutional framework, as it would demonstrate a
unity of purpose among the political branches on this important
national security matter. It has always been my view that it is better
to take military action, even in limited actions such as this, with
congressional engagement, consultation, and support.'' If that has
always been his view, it was his obligation to come to Congress in
February to seek legislative authorization.
2. ``authorization'' from nato
On March 28, in an address to the Nation, President Obama announced
that after U.S. military operations had been carried out against Libyan
troops and air defenses, he would ``transfer responsibilities to our
allies and partners.'' NATO ``has taken command of the enforcement of
the arms embargo and the no-fly zone.'' \13\ Two days earlier, State
Department Legal Adviser Harold Koh spoke of this transfer to NATO:
``All 28 allies have also now authorized military authorities to
develop an operations plan for NATO to take on the broader civilian
protection mission under Resolution 1973.'' \14\ The May 20 letter from
President Obama to Congress explained that by April 4 ``the United
States had transferred responsibility for the military operations in
Libya to the North Atlantic Treaty Organization (NATO) and the U.S.
involvement has assumed a supporting role in the coalition's efforts.''
---------------------------------------------------------------------------
\13\ Remarks by the President in Address to the Nation on Libya,
March 28, 2011, at 2, available at http://www.whitehouse.gov/the-press-
office/2011/03/28/remarks-president-address-nation-libya.
\14\ Harold Hongju Koh, Legal Adviser U.S. Department of State,
``Statement Regarding Use of Force in Libya,'' March 26, 2011,
appearing before the American Society of International Law Annual
Meeting, at 2, available at http://www.state.gov/s/l/releases/remarks/
159201.htm.
---------------------------------------------------------------------------
Nothing in these or any other communications from the
administration can identify a source of authorization from NATO for
military operations. Like the U.N. Charter, NATO was created by treaty.
The President and the Senate through the treaty process may not shift
the authorizing function from Congress to outside bodies, whether the
Security Council or NATO. Section 8 of the War Powers Resolution
specifically states that authority to introduce U.S. Armed Forces into
hostilities or into situations wherein involvement in hostilities is
clearly indicated by the circumstances ``shall not be inferred . . .
from any treaty heretofore or hereafter ratified unless such treaty is
implemented by legislation specifically authorizing the introduction of
United States Armed Forces into hostilities or into such situations and
stating that it is intended to constitute specific statutory
authorization within the meaning of this joint resolution.'' \15\ The
authorizing body is always Congress, not the Security Council or NATO.
---------------------------------------------------------------------------
\15\ 87 Stat. 555, 558, sec. 8(a)(2) (1973).
---------------------------------------------------------------------------
3. military operations in libya: not a ``war''
The Obama administration has been preoccupied with efforts to
interpret words beyond their ordinary and plain meaning. On April 1,
the Office of Legal Counsel reasoned that ``a planned military
engagement that constitutes a `war' within the meaning of the
Declaration of War Clause may require prior congressional
authorization.'' But it decided that the existence of ``war'' is
satisfied ``only by prolonged and substantial military engagements,
typically involving exposure of U.S. military personnel to significant
risk over a significant period.'' \16\ Under that analysis, OLC
concluded that the operations in Libya did not meet the
administration's definition of ``war.'' If U.S. casualties can be kept
low, no matter the extent of physical destruction to another nation and
loss of life, war to OLC would not exist within the meaning of the
Constitution. If another nation bombed the United States without
suffering significant casualties, would we call it war? Obviously we
would. When Pearl Harbor was attacked on December 7, 1941, the United
States immediately knew it was at war regardless of the extent of
military losses by Japan.
---------------------------------------------------------------------------
\16\ U.S. Justice Department, Office of Legal Counsel, ``Authority
to Use Military Force in Libya,'' April 1, 2011, at 8, available at
http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf.
---------------------------------------------------------------------------
4. no ``hostilities'' under the wpr
In response to a House resolution passed on June 3, the Obama
administration on June 15 submitted a report to Congress. A section on
legal analysis (p. 25) determined that the word ``hostilities'' in the
War Powers Resolution should be interpreted to mean that hostilities do
not exist with the U.S. military effort in Libya: ``U.S. operations do
not involve sustained fighting or active exchanges of fire with hostile
forces, nor do they involve the presence of U.S. ground troops, U.S.
casualties or a serious threat thereof, or any significant chance of
escalation into a conflict characterized by those factors.''
This interpretation ignores the political context for the War
Powers Resolution. Part of the momentum behind passage of the statute
concerned the decision by the Nixon administration to bomb
Cambodia.\17\ The massive air campaign did not involve ``sustained
fighting or active exchanges of fire with hostile forces,'' the
presence of U.S. ground troops, or substantial U.S. casualties.
However, it was understood that the bombing constituted hostilities.
---------------------------------------------------------------------------
\17\ Thomas F. Eagleton, War and Presidential Power: A Chronicle of
Congressional Surrender 150-83 (1974).
---------------------------------------------------------------------------
According to the administration's June 15 report, if the United
States conducted military operations by bombing at 30,000 feet,
launching Tomahawk missiles from ships in the Mediterranean, and using
armed drones, there would be no ``hostilities'' in Libya under the
terms of the War Powers Resolution, provided that U.S. casualties were
minimal or nonexistent. Under the administration's June 15 report, a
nation with superior military force could pulverize another country
(perhaps with nuclear weapons) and there would be neither hostilities
nor war. The administration advised Speaker John Boehner on June 15
that ``the United States supports NATO military operations pursuant to
UNSCR 1973. . . .'' \18\ By its own words, the Obama administration is
supporting hostilities.
---------------------------------------------------------------------------
\18\ Letter from the Department of State and Department of Defense
to Speaker John A. Boehner, June 15, 2011, at 1.
---------------------------------------------------------------------------
Although OLC in its April 1 memo supported President Obama's
military actions in Libya, despite the lack of statutory authorization,
it did not agree that ``hostilities'' (as used in the War Powers
Resolution) were absent in Libya. Deprived of OLC support, President
Obama turned to White House Counsel Robert Bauer and State Department
Legal Adviser Harold Koh for supportive legal analysis.\19\ It would
have been difficult for OLC to credibly offer its legal justification.
The April 1 memo defended the ``use of force'' in Libya because
President Obama ``could reasonably determine that such use of force was
in the national interest.'' OLC also advised that prior congressional
approval was not constitutionally required ``to use military force'' in
the limited operations under consideration.\20\ The memo referred to
the ``destruction of Libyan military assets.'' \21\
---------------------------------------------------------------------------
\19\ Charlie Savage, ``2 Top Lawyers Lose Argument on War Power,''
New York Times, June 18, 2011, at A1.
\20\ OLC Opinion, supra note 16, at 1.
\21\ Id. at 6.
---------------------------------------------------------------------------
It has been recently reported that the Pentagon is giving extra pay
to U.S. troops assisting with military actions in Libya because they
are serving in ``imminent danger.'' The Defense Department decided in
April to pay an extra $225 a month in ``imminent danger pay'' to
service members who fly planes over Libya or serve on ships within 110
nautical miles of its shores. To authorize such pay, the Pentagon must
decide that troops in those places are ``subject to the threat of
physical harm or imminent danger because of civil insurrection, civil
war, terrorism or wartime conditions.'' \22\ Senator Richard Durbin has
noted that ``hostilities by remote control are still hostilities.'' The
Obama administration chose to kill with armed drones ``what we would
otherwise be killing with fighter planes.'' \23\
---------------------------------------------------------------------------
\22\ David A. Fahrenthold, ``Obama's Reasoning on Libya
Criticized,'' Washington Post, June 21, 2011, at A8.
\23\ Id.
---------------------------------------------------------------------------
It is interesting that various administrations, eager to press the
limits of Presidential power, seem to understand that they may not--
legally and politically--use the words ``war'' or ``hostilities.''
Apparently they recognize that using words in their normal sense,
particularly as understood by Members of Congress, Federal judges, and
the general public, would acknowledge what the Framers believed. Other
than repelling sudden attacks and protecting American lives overseas,
Presidents may not take the country from a state of peace to a state or
war without seeking and obtaining congressional authority.
5. nonkinetic assistance
The Obama administration has distinguished between ``kinetic'' and
``nonkinetic'' actions, with the latter apparently referring to no
military force. The March 21 letter from President Obama to Congress
spoke of clearly kinetic activities. U.S. forces had ``targeted the
Qadhafi regime's air defense systems, command and control structures,
and other capabilities of Qadhafi's armed forces used to attack
civilians and civilian populated areas.'' \24\ By May 20, in a letter
to Congress, President Obama stated: ``Since April 4, U.S.
participation has consisted of: (1) nonkinetic support to the NATO-led
operation. . . .'' Elements not directly using military force are
listed: intelligence, logistical support, and search and rescue
missions. However, the letter identified these continued applications
of military force: ``aircraft that have assisted in the suppression and
destruction of air defenses in support of the no-fly zone'' and ``since
April 23, precision strikes by unmanned aerial vehicles against a
limited set of clearly defined targets in support of the NATO-led
coalition's efforts.'' \25\
---------------------------------------------------------------------------
\24\ March 21, 2011, letter, supra note 11, at 2.
\25\ President Obama's Letter About Efforts in Libya, May 20, 2011,
sent to Senate and House leaders John A. Boehner, Nancy Pelosi, Harry
Reid, and Mitch McConnell, at 1.
---------------------------------------------------------------------------
6. support from s. res. 85
OLC in its April 1 memo relied in part on legislative support from
the Senate: ``On March 1, 2011, the United States Senate passed by
unanimous consent Senate Resolution 85. Among other things, the
Resolution `strongly condemn[ed] the gross and systematic violations of
human rights in Libya, including violent attacks on protesters
demanding democratic reforms,' `call[ed] on Muammar Gadhafi to desist
from further violence,' and `urge[d] the United Nations Security
Council to take such further action as may be necessary to protect
civilians in Libya from attack, including the possible imposition of a
no-fly zone over Libyan territory.' '' \26\ Action by ``unanimous
consent'' suggests strong Senate approval for the resolution, but the
legislative record provides no support for that impression. Even if
there were evidence of strong involvement by Senators in drafting,
debating, and adopting this language, a resolution passed by a single
Chamber contains no statutory support. In addition, passage of S. Res.
85 reveals little other than marginal involvement by a few Senators.
---------------------------------------------------------------------------
\26\ OLC Opinion, supra note 16, at 2.
---------------------------------------------------------------------------
Resolution 7 of S. Res. 85 urged the Security Council ``to take
such further action as may be necessary to protect civilians in Libya
from attack, including the possible imposition of a no-fly zone over
Libyan territory.'' When was the no-fly language added to the
resolution? Were Senators adequately informed of this amendment? There
is evidence that they were not. The legislative history of S. Res. 85
is sparse. There were no hearings and no committee report. The
resolution was not referred to a particular committee. Sponsors of the
resolution included 10 Democrats (Bob Menendez, Frank Lautenberg, Dick
Durbin, Kirsten Gillibrand, Bernie Sanders, Sheldon Whitehouse, Chuck
Schumer, Bob Casey, Ron Wyden, and Benjamin Cardin) and one Republican
(Mark Kirk).
There was no debate on S. Res. 85. There is no evidence of any
Senator on the floor at that time other than Senator Schumer and the
presiding officer. Schumer asked for unanimous consent to take up the
resolution. No one objected, possibly because there was no one present
to object. Senate ``deliberation'' took less than a minute. When one
watches Senate action on C-SPAN, consideration of the resolution began
at 4:13:44 and ended at 4:14:19--after 35 seconds. On March 30, Senator
John Ensign objected that S. Res. 85 ``received the same amount of
consideration that a bill to name a post office has. This legislation
was hotlined.'' \27\ That is, Senate offices were notified by automated
phone calls and e-mails of pending action on the resolution, often late
in the evening when few Senators are present. According to some Senate
aides, ``almost no Members knew about the no-fly zone language'' that
had been added to the resolution.\28\ At 4:03 pm, through the hotlined
procedure, Senate offices received S. Res. 85 with the no-fly zone
provision but without flagging the significant change.\29\ Senator Mike
Lee noted: ``Clearly, the process was abused. You don't use a hotline
to bait and switch the country into a military conflict.'' \30\ Senator
Jeff Sessions remarked: ``I am also not happy at the way some
resolution was passed here that seemed to have authorized force in some
way that nobody I know of in the Senate was aware that it was in the
resolution when it passed.'' \31\
---------------------------------------------------------------------------
\27\ 157 Cong. Rec. S1952 (daily ed. March 30, 2011).
\28\ Conn Carroll, ``How the Senate Was Bait and Switched Into
War,'' http://washington
examiner-com/print/blogs/beltway-confidential/2011/04-how-senate-was-
bait-and-switched-war.
\29\ Id.
\30\ Id.
\31\ 157 Cong. Rec. S2010 (daily ed. March 31, 2011).
---------------------------------------------------------------------------
7. the ``mandate'' for military action in libya
President Obama's speech to the Nation on March 28 stated that
``the United States has not acted alone. Instead, we have been joined
by a strong and growing coalition. This includes our closest allies--
nations like the United Kingdom, France, Canada, Denmark, Norway,
Italy, Spain, Greece, and Turkey--all of whom have fought by our side
for decades. And it includes Arab partners like Qatar and the United
Arab Emirates, who have chosen to meet their responsibilities to defend
the Libyan people.'' Over the month of March, ``the United States has
worked with our international partners to mobilize a broad coalition,
secure an international mandate to protect civilians, stop an advancing
army, prevent a massacre, and establish a no-fly zone with our allies
and partners.'' \32\ Missing from this coalition and mandate was the
institution of Congress. President Obama in this speech spoke of ``a
plea for help from the Libyan people themselves.'' \33\ He offered his
support ``for a set of universal rights, including the freedom for
people to express themselves'' and for governments ``that are
ultimately responsive to the aspirations of the people.'' \34\ Yet
throughout this period there had been no effort by the President or his
administration to listen to the American people or secure their
support.
---------------------------------------------------------------------------
\32\ Remarks by the President in Address to the Nation on Libya,
March 28, 2011, at 2, supra note 13.
\33\ Id. at 3.
\34\ 34 Id. at 4.
---------------------------------------------------------------------------
On May 20, in a letter to Congress, President Obama said that he
acted militarily against Libya ``pursuant to a request from the Arab
League and authorization by the United Nations Security Council.'' The
administration's June 15 submission to Congress claims that President
Obama acted militarily in Libya ``with a mandate from the United
Nations.'' There is only one permitted mandate under the U.S.
Constitution for the use of military force against another nation that
has not attacked or threatened the United States. That mandate must
come from Congress.
Senate Joint Resolution 20, introduced on June 21, is designed to
authorize the use of U.S. armed force in Libya. In two places the
resolution uses the word ``mandate.'' Security Council Resolution 1970
``mandates international economic sanctions and an arms embargo.''
Security Council Resolution 1973 ``mandates `all necessary measures' to
protect civilians in Libya, implement a `no-fly zone', and enforce an
arms embargo against the Qaddafi regime.'' The Security Council cannot
mandate, order, or command the United States. Under the U.S.
Constitution, mandates come from laws enacted by Congress.
The Chairman. Thank you very much, Mr. Fisher, a very
effective summary. Thank you.
Mr. Spiro.
STATEMENT OF PETER SPIRO, CHARLES R. WEINER PROFESSOR OF LAW,
TEMPLE UNIVERSITY, BEASLEY SCHOOL OF LAW, PHILADELPHIA, PA
Mr. Spiro. Thank you, Mr. Chairman. Good afternoon to you,
Senator Lugar, and members of the committee. Thank you for the
opportunity to testify before you today on the issue of Libya
and war powers.
In my view, U.S. participation in the Libya operation has
been lawful. The President had constitutional authority to
initiate U.S. participation in this operation without advanced
congressional authorization.
That participation continues to be lawful. The
administration's interpretation of hostilities under the War
Powers Resolution is a plausible one, although not free from
doubt. I understand concerns on the part of Members of Congress
with respect to this interpretation.
Congressional participation in war powers decisionmaking is
important to the successful execution of our national foreign
relations. However, in my view, the War Powers Resolution does
not supply a useful vehicle for facilitating interbranch
cooperation.
The Chairman. Mr. Spiro, if I could just interrupt you, I
apologize. The vote started. I'm going to go over there and try
to get them to prolong it a little bit so that you can finish
your testimony, and Senator Lugar will have time, and Senator
Shaheen, to get over. I'll try to back it up. I appreciate it.
I did have some questions. I want to follow up, obviously.
So they will certainly be part of the record, and we'll make a
decision on when we'll be able to reconvene. I thank you.
Mr. Spiro. Should I continue, Senator? Yes.
The War Powers Resolution does not supply a useful vehicle
for facilitating interbranch cooperation. Congress and the
President should leave aside their differences on the War
Powers Resolution and work toward mutually acceptable terms for
continued United States participation in the Libya operation.
For all its notoriety, the War Powers Resolution has had
little effect on war powers practice. The operative core of the
resolution is the 60-day termination provision of section 5(b).
The most notable episode implicating the 60-day clock was
President Clinton's participation in the NATO bombing campaign
in Kosovo. Participation in that operation continued more than
60 days after its initiation, notwithstanding the lack of
specific statutory authorization.
The Clinton administration asserted that congressional
funding for the operation satisfied the requirements of the War
Powers Resolution. This was a questionable argument on its own
terms, but Congress and other actors accepted the continuation
of the bombing past the 60-day window.
In the absence of specific appropriations for the Libya
operation, President Obama lacks that sort of argument.
Instead, the administration argues that participation in the
Libya operation does not rise to the level of ``hostilities''
for purposes of the act and the section 5(b) trigger.
I have three observations with respect to this question.
First, and here I echo the Legal Adviser, plain language
approaches to textural meanings seem particularly inappropriate
in the context of war powers. As with parallel constitutional
understandings, statutory measures relating to national
security and military force are likely to be interpreted in
light of practice and historical precedent, as much as through
language.
Second, practice relating to the War Powers Act renders the
administration's interpretation a plausible one. As the Legal
Adviser has detailed for you this morning, there are historical
precedents suggesting a narrower interpretation of hostilities
than might be expected from an everyday understanding of the
term.
Third, that is not to say that the administration's
position is necessarily the better one. Members of this
committee and the Senate as a whole do not have to accept that
position. The contrary position is also reasonable. There is
insufficient practice and other evidence definitively to
resolve the question either way as applied to the Libya
operation. Congress could make clear through a formal
institutional pronouncement that it rejects the
administration's interpretation of hostilities.
But finally, it is not clear how pressing the hostilities
question serves the institutional self-interest of the
legislative branch. On the one hand, I believe that any
President faced with the winding down of the 60-day clock would
identify some justification for avoiding the terms of section
5(b). No responsible chief executive would terminate a military
operation deemed in the national interest in the face of
congressional inaction.
If not authorization gleaned from a funding measure, if not
an argument relating to the definition of hostilities, then
some other avenue would present itself to evade the termination
provision. Section 5(b) is unlikely ever to be given effect,
nor will the judiciary ever enforce it.
Does this mean that section 5(b) is unconstitutional? That
may be a question better left to the court of history.
Presidents have good cause to avoid constitutional showdowns
where more minimalist arguments will serve the same ends. It is
my understanding that the administration has not affirmed the
constitutionality of the War Powers Resolution. It's been quite
careful, in fact, not to concede the question.
On the other hand, Congress has no real need of the section
5(b) provision or the rest of the War Powers Act for that
matter. Congress has ample tools with which to control
Presidential deployments of U.S. Armed Forces. In any event,
devising a position of the Congress with respect to the
operation in Libya should be the primary task at hand. Disputes
relating to the War Powers Resolution are likely to distract
from that undertaking. The persistent cloud over the act
underlines the perception among some that Congress is ill-
equipped in this realm. Congress would be better served by
focusing on other institutional tools for participating in the
full spectrum of military deployment and use of force
decisions.
Thank you, Mr. Ranking Member.
[The prepared statement of Mr. Spiro follows:]
Prepared Statement of Peter J. Spiro
Good morning, Mr. Chairman, Senator Lugar, and members of the
committee. Thank you for the opportunity to testify before you today on
the issue of Libya and war powers.
For the record, I am the Charles Weiner Professor of Law at Temple
University Law School, where I teach subjects relating to international
and constitutional law. From 2004-2006, I was Rusk Professor of
International Law at the University of Georgia Law School. I am a
former law clerk to Judge Stephen F. Williams on the U.S. Court of
Appeals for the D.C. Circuit and to Justice David H. Souter of the
Supreme Court of the United States. I have also served as an Attorney-
Adviser in the Office of the Legal Adviser, U.S. Department of State,
as well as Director for Democracy on the staff of the National Security
Council. I am currently a member of the Advisory Committee on
Historical Diplomatic Documentation, U.S. Department of State. Among
other subjects, I have published widely on matters relating to foreign
affairs and the Constitution.
In my view, U.S. participation in NATO operations in Libya has been
lawful. The President had constitutional authority to initiate U.S.
participation in these operations without advance congressional
authorization. That participation continues to be lawful. The
administration's interpretation of ``hostilities'' under the War Powers
Resolution is a plausible one, although not free from doubt. I
understand concerns on the part of members of Congress with respect to
this interpretation. In my view, however, it is not clear that the
definition of ``hostilities''--which becomes operable only through the
contested 60-day termination provision of section 5(b)--meaningfully
bears on the legality of the U.S. participation in the NATO campaign.
The legality of the Libya operation in the absence of congressional
authorization is not to diminish the importance of congressional
participation in war powers decisionmaking. Nor does it mean that war
powers comprises a constitutional black hole. The rule of law is a
central feature of our system for addressing questions relating to the
use of force. There are important respects in which congressional
participation is constitutionally demanded. However, I do not believe
that the War Powers Resolution affects the constitutional balance of
powers with respect to the use of force. WPR-related disputes such as
the one you are considering today distract from key decisions on which
the collective judgment of the executive and legislative branches
remains essential. Congress and the President should leave aside their
differences on the War Powers Resolution and work toward mutually
acceptable terms for continued U.S. participation in NATO operations in
Libya.
constitutional parameters
The constitutional division of war powers cannot be measured with
calipers. The courts have largely absented themselves from matters
implicating war powers. Judicial nonparticipation makes sense as a
matter of institutional capacity. It does, however, lead to a paucity
of authoritative pronouncements on the division of war powers. Against
this landscape, historical practice supplies the precedents that guide
our contemporary understandings of war powers. As Justice Frankfurter
famously observed in the Steel Seizure case, these precedents add to
the written Constitution ``a gloss which life has written upon them.''
While not unchanging, historical practice relating to war powers
has proved remarkably consistent. This practice can be reduced to three
basic principles.
1. For major engagements, the President must as a constitutional
matter secure congressional authorization in advance. This explains why
both George W. Bush and George H.W. Bush sought congressional
authorization before initiating military action in Kuwait and Iraq.
This was not simply a matter of politics; it was a matter of
constitutional necessity. Where the use of U.S. Armed Forces is likely
to implicate a major commitment of resources over an extended period of
time with a risk of substantial casualties, our constitutional system
demands the prior assent of the legislative branch.
2. For less significant engagements, on the other hand, the
President is constitutionally empowered to deploy U.S. forces without
congressional authorization. On numerous occasions throughout U.S.
history, Presidents have undertaken deployments involving the use or
potential use of force without congressional approval. From recent
decades, we have examples including Kosovo, Bosnia, Haiti, Panama, the
so-called Tanker war of the mid-1980s, the 1986 bombing of Tripoli,
Lebanon, and Grenada, among others. This practice is consistent and has
been engaged in with the knowledge and acquiescence of the legislative
branch. It establishes a clear constitutional standard with respect to
the division of war power. This standard reflects the imperatives of
the use of force against the landscape of foreign relations and the
national interest: the need for dispatch and flexibility that conforms
to the institutional capacities of the Presidency.
The practice supports the constitutionality of President Obama's
decision to participate in the Libya operation without advance
congressional authorization. Because the operation is limited in
nature, scope, and duration, it fits comfortably within the practice
relating to the use of force short of ``real war.'' In my view, the
opinion of the Office Legal Counsel of April 1, 2011, on this question
is persuasive. This conclusion is confirmed by the lack of any
persistent institutional opposition to the initial decision.
The distinction between major and lesser engagements also explains
why comparisons between the approaches of Presidents Bush and Obama to
Iraq and Libya respectively are misplaced. The two episodes are
constitutional apples and oranges. Iraq involved a massive commitment
of resources, with grave risks to U.S. Armed Forces. Though hardly
trivial, Libya lies toward the other end of the constitutional
spectrum. The distinction is material for constitutional purposes.
3. Finally, Congress has the power to terminate or condition
particular military engagements through engagement-specific,
affirmative legislation. This power is exercised subject to the
President's exclusive authorities as Commander in Chief over military
decisionmaking, reasonably conceived. Joint resolutions respecting U.S.
deployments in Lebanon and Somalia supply recent historical examples in
which Congress imposed temporal limitations on the use of U.S. Armed
Forces. Congress could impose such limitations with respect to the
Libya operation. Congress also has the power to issue institutional
pronouncements through nonbinding pronouncements. These institutional
statements are of constitutional consequence. For instance, the formal
condemnation by the House of Representatives of President Polk's
initiation of the conflict with Mexico in 1848 evidenced its rejection
of the constitutionality of that engagement.
As in any area of constitutional law, but especially in the absence
of judicial decisions, these categories supply only an outline of the
law. The boundaries of these categories are unstable and subject to
revision and evolution, especially in the face of changing background
conditions. However, there is a remarkable consistency to the practice.
This consistency suggests workability. The consistency also suggests an
acceptance of the practice as legitimate by all relevant constitutional
actors, the Congress and President centered among them.
the war powers resolution
For all its notoriety, the War Powers Resolution has had little
effect on war powers practice. From appearances, the act has marked the
front lines of contests between Congress and the President over war
powers. In reality, disputes relating to the War Powers Resolution are
better characterized as skirmishes. The act has not materially affected
the terms of continuing struggles between the executive and legislative
branches relating to war powers.
Nor should it. The act reflected the moment of its creation in
1973, an anomalous one marking a nadir in congressional-executive
relations. The act has changed Presidential behavior in only one
notable respect, through the reporting requirement of section 4. It is
now a routine and accepted practice for Presidents to report uses of
force as well as substantial combat deployments to the congressional
leadership. This requirement is unexceptional and advances important
transparency values. In section 3, the act also codifies a historical
tradition of consultation by the President with Congress in all
possible instances.
But in other respects, the act has proved unable to shift
constitutional understandings as developed through the practice.
This works in both directions. By its terms, the act ostensibly
gives the President a 60-day window in which to undertake any use of
force, regardless of magnitude, without congressional authorization.
Both George H.W. Bush and George W. Bush could have, consistent with
the War Powers Resolution, undertaken major military engagements
against Iraq without prior congressional authorization. And yet the
failure to secure advance congressional authorization in those cases
would have violated prevailing constitutional standards. The War Powers
Resolution, in other words, cannot validate what would otherwise
constitute Presidential overreaching.
On the other side, the act has not subtracted from Presidential
powers. In its policy statement, for instance, the act fails to
recognize the protection of U.S. citizens as a justification for the
use of military force. That has not stopped Presidents from justifying
military engagements on that basis, consistent with longstanding
practice. Nor have subsequent Congresses rejected that justification.
The 60-day termination provision of section 5(b) comprises the
act's most controversial provision. It has been accepted as
constitutional only by President Carter (and then only in passing, in a
single paragraph of an OLC opinion). Section 5(b) was tested by
President Clinton in the context of the 1992-93 Somalia deployment. On
only one occasion has Congress acted to authorize a deployment on its
understanding of a section 5(b) deadline, with respect to the 1982-83
Lebanon peacekeeping deployment.
The most notable episode implicating the 60-day clock was President
Clinton's participation in the NATO bombing campaign in Kosovo.
Participation in that operation, as with the Libya operation, continued
more than 60 days after its initiation in the absence of specific
statutory authorization. In that case the Office of Legal Counsel
asserted that congressional funding for the operation satisfied the
requirements of the War Powers Resolution, notwithstanding the section
8(a) requirement that authorization not be inferred from
appropriations. This was a questionable argument on its own terms. It
was a central objective of the War Powers Resolution to end
authorization through appropriations measures, on the theory that
Congress would never cut off the funding of U.S. troops in the field.
Bills to extend specific authorization for the Kosovo operation
consistent with section 8(a) failed to pass. In the end Congress and
other actors accepted the continuation of the bombing past the 60-day
window.
That was as it should have been. I will not rehearse here at length
the structural arguments against the termination provision of section
5(b). Suffice it to say that inaction may not equate with disapproval,
as demonstrated by contradictory actions on Congress' part during the
Kosovo operation (and in the House last week with respect to Libya).
Military decisionmaking should not be driven on a prospective basis by
legislative default devices. The stakes are too high to be governed by
the dead hand of legislation enacted to address the difficulties of
another era.
``Hostilities'' Under the War Powers Resolution
In the absence of funding specific to the Libya operation,
President Obama lacks the sort of argument that President Clinton made
with respect to the Kosovo campaign. Instead, the administration argues
that the participation in the Libya operation does not rise to the
level of ``hostilities'' for purposes of the act and the section 5(b)
trigger. I have three observations with respect to this question.
First, plain language approaches to textual meanings seem
particularly inappropriate in the context of war powers. In parallel to
the evolution of constitutional understandings, statutory measures
relating to national security and military force are likely to be
interpreted in light of practice and historical precedent as much as
through language. The War Powers Resolution should not be addressed in
the way one would address the tax code.
Second, practice relating to the War Powers Act renders the
administration's interpretation a plausible one. As the Legal Adviser
has detailed for you this morning, there are historical precedents
suggesting a narrower interpretation of the term ``hostilities'' than
might be expected from an everyday understanding of the term. (It is
unfortunate that this full explanation has waited until today, however,
to the extent that others have been able to fill an explanatory
vacuum.)
Third, that is not to say that the administration's position is
necessarily the better one. Members of this committee and the Senate as
a whole do not have to accept that position. The contrary position is
also reasonable. There is insufficient practice and other evidence
definitively to resolve the question either way as applied to the
particulars of U.S. participation in NATO operations in Libya. To the
extent that Congress makes clear, through a formal institutional
pronouncement (as opposed to isolated statements of particular
members), that it rejects the administration's interpretation of
``hostilities,'' then the case will stand at best as a contested
precedent, one to be resolved, perhaps, in future episodes.
But, finally, it is not clear how pressing the ``hostilities''
question buys Congress anything as an institution. In my view, it is
not obviously in Congress' institutional self-interest to press the
point. On the one hand, I believe that any President faced with the
winding down of the 60-day clock would identify some justification for
avoiding the terms of section 5(b). No responsible Chief Executive
would terminate a military operation in the national interest in the
face of congressional inaction. If not authorization gleaned from a
funding measure, if not an argument relating to ``hostilities,'' then
some other avenue would present itself to evade the termination
provision. Section 5(b) is unlikely ever to be given effect. Nor will
the judiciary ever enforce it.
Call it death by a thousand cuts. Does this mean that section 5(b)
is unconstitutional? That question may better be left to the court of
history. Although Presidents may not declare the act unconstitutional,
from the Reagan administration onward they have been careful not to
concede the point. They have good cause to avoid the distraction of
constitutional confrontation where a more minimalist argument will
serve the same end.
On the other hand, Congress has no real need of the provision, lack
of respect for which reflects poorly on the institution. Congress has
ample tools with which to control Presidential deployments of U.S.
Armed Forces. As the nature of military engagement migrates away from
the use of ground forces, at least in limited conflicts, Congress will
be able to use the appropriation mechanism with less fear of leaving
U.S. forces in harm's way. The nature of these engagements, often in
the name of the international community, will also give Congress more
latitude to constrain Presidential action. In coming years we may well
witness a trend toward greater congressional participation in decisions
relating to the use of U.S. Armed Forces.
In any event, devising a position of the Congress with respect to
the operation in Libya should be the primary task at hand. Disputes
relating to the War Powers Resolution are likely to distract from that
undertaking. I believe we would be having the same sort of discussion
today even if the War Powers Resolution had not been enacted. The
persistent cloud over the act underlines the perception of some that
Congress is ill-equipped in this realm. Congress would be better served
by focusing on other institutional tools for participating in the full
spectrum of use-of-force decisions.
Thank you, Mr. Chairman, for the opportunity to present my views to
you on this important subject. This is a critical juncture in the
history of constitutional war powers. It is important that the Senate
give these questions its closest consideration.
Senator Lugar [presiding]. Well, on behalf of the
committee, I thank both of you for very important testimony,
both your written testimony as well as these oral presentations
this morning. I appreciate so much hearing both of you, and we
will study carefully your papers.
The hearing is adjourned.
[Whereupon, at 12:18 p.m., the hearing was adjourned.]
Additional Material Submitted for the Record
Responses of Legal Adviser Harold Koh to Questions Submitted by
Senator Richard G. Lugar
Question. In a 1980 opinion regarding the War Powers Resolution,
the Justice Department's Office of Legal Counsel wrote the following:
We believe that Congress may, as a general constitutional
matter, place a 60-day limit on the use of our Armed Forces as
required by the provisions of Sec. 1544(b) of the resolution.
The resolution gives the President the flexibility to extend
that deadline for up to 30 days in cases of ``unavoidable
military necessity.''
This flexibility is, we believe, sufficient under any
scenarios we can hypothesize to preserve his constitutional
function as Commander in Chief. The practical effect of the 60-
day limit is to shift the burden to the President to convince
the Congress of the continuing need for the use of our Armed
Forces abroad.
We cannot say that placing that burden on the President
unconstitutionally intrudes upon his executive powers.
Does this opinion continue to reflect the views of the executive
branch with regard to the constitutionality of section 1544 (b) of the
War Powers Resolution? If not, please indicate in what respects the
views of the executive branch on this question have changed.
Answer. Yes, the opinion continues to reflect the views of the
executive branch.
Question. The 1973 House committee report on the bill that became
the War Powers Resolution states that, in the resolution's text, ``the
word `hostilities' was substituted for the phrase `armed conflict'
during the subcommittee drafting process because it was considered to
be somewhat broader in scope.''
Does the administration believe that U.S. forces are engaged
in armed conflict in Libya?
Answer. For purposes of international law, U.S. and NATO forces are
engaged in an armed conflict in Libya. We are committed to complying
with the laws of armed conflict, and we hold other belligerents in the
conflict, including the Qadhafi regime, to the same standards. With
regard to the language quoted from the House report, as I noted in my
testimony, the report and the statute do not specifically define the
term ``hostilities.'' My testimony cited other legislative history that
reflects that, in the words of Senate sponsor Jacob Javits, Congress
chose a term that ``accepts a whole body of experience and precedent
without endeavoring specifically to define it.'' As a matter of
established practice, ``hostilities'' determinations under the War
Powers Resolution have been understood as requiring a factual inquiry
into the circumstances and conditions of the military action in
question, and particularly the expected dangers that confront U.S.
forces. For the reasons set forth in my testimony, the administration
believes that the United States supporting role in NATO Operation
Unified Protector--which is limited in the nature of the mission,
limited in the risk of exposure to United States Armed Forces, limited
in the risk of escalation, and limited in the choice of military
means--has not constituted the kind of ``hostilities'' envisioned by
the resolution's 60-day pullout rule. This is a distinct inquiry from
the legal tests for determining what constitutes an ``armed conflict''
under international law.
Moreover, as I explained in my testimony, the definition of
``hostilities'' that we have used in this instance is consistent with
the definition that one of my predecessors, Monroe Leigh, offered to
Congress on behalf of the executive branch in 1975. The discussion
between our two branches of government regarding the meaning of
``hostilities'' has been ongoing, but throughout, the Executive has not
departed significantly from the understanding we supplied at that time.
Question. Among the assistance U.S. forces are providing to enable
NATO airstrikes in Libya are electronic warfare support, aerial
refueling, and intelligence, surveillance and reconnaissance support.
If U.S. forces encountered persons providing assistance of
this sort to Taliban or al-Qaeda forces in Afghanistan, would
the administration consider that such persons were directly
participating in hostilities against the United States under
the laws of armed conflict?
Answer. The laws of war provide that civilians, who as such are
generally immune from attack in an armed conflict, can be targeted if
and for such time as they take a direct part in hostilities. The
precise contours of the concept of ``direct participation in
hostilities''--reflected in Common Article 3 of the 1949 Geneva
Conventions, Article 51 of Additional Protocol I of 1977, and Article
13 of Additional Protocol II of 1977--remain subject to considerable
debate, and specific determinations as to when an individual is taking
a direct part in hostilities are highly fact-dependent. This
international law of war concept has not, however, generally been
applied to determine whether U.S. forces are engaged in
``hostilities,'' as a matter of domestic law, for purposes of the War
Powers Resolution.
Question. At the outset of the Libya operations, the Department of
Justice opined that the operations were anticipated to be limited in
their ``nature, scope, and duration.'' On this basis, it concluded that
the President did not require prior congressional authorization to
initiate them.
As I indicated in my opening statement, 3 months into our military
involvement in Libya, the administration's assurances about the limited
nature of the involvement ring hollow. American and coalition military
activities have expanded to an all but declared campaign to drive
Qadhafi from power. The administration is unable to specify any
applicable limits to the duration of the operations. And the scope has
grown from efforts to protect civilians under imminent threat to
obliterating Libya's military arsenal, command and control structure,
and leadership apparatus.
Is it still the administration's view that the Libya operations are
limited in their nature, scope, and duration? If so, please identify
The specific limits that apply to the nature of U.S.
military operations in Libya;
The specific limits that apply to the scope of U.S. military
operations in Libya, and
The specific limits that apply to the duration of U.S.
military operations in Libya.
Answer. It remains the administration's view that the Libya
operations are limited in their nature, scope, and duration, such that
prior congressional authorization was not constitutionally required for
the President to direct this military action. These same limitations
inform our analysis of the War Powers Resolution: As my testimony
explained in detail, the combination of four limitations--the limited
nature of (1) our military mission (playing a supporting role in a
NATO-led coalition to enforce a United Nations Security Council
Resolution that authorizes Member States to engage in civilian
protection); (2) the exposure to our Armed Forces (who have not to date
suffered casualties or been engaged in active exchanges of fire); (3)
the risk of escalation (which is reduced by the absence of U.S. ground
troops or regional opposition and by the existence of U.N.
authorization, among other factors); and (4) the military means we have
been using (confined to a discrete set of military tools, most of them
nonkinetic)--all contributed to the President's determination that the
60-day pullout rule does not apply. The administration will continue to
monitor the nature of U.S. involvement in the NATO operation to
determine whether any further steps within the War Powers Resolution
framework would be appropriate.
Question. Some have suggested that if the administration were to
acknowledge that the War Powers Resolution's definition of
``hostilities'' includes strikes by [unmanned] drones, the President
would be constrained in his ability to carry out such strikes against
members of al-Qaeda, including in Somalia.
Does the administration believe that the post-September 11
Authorization for the Use of Military Force (Pub. Law 107-40)
provides congressional authorization for the use of force,
including strikes by unarmed drones, against members of al-
Qaeda in whatever foreign country they may be located?
Answer. Following the horrific attacks of 9/11, the United States
has been in an armed conflict with al-Qaeda and associated forces. As a
matter of domestic law, Congress authorized the use of all necessary
and appropriate force against al-Qaeda, the Taliban, and associated
forces in the 2001 Authorization for Use of Military Force. As I stated
in a speech that I gave before the American Society of International
Law on March 25, 2010, ``whether a particular individual will be
targeted in a particular location will depend upon considerations
specific to each case, including those related to the imminence of the
threat, the sovereignty of the other states involved, and the
willingness and ability of those states to suppress the threat the
target poses.'' See http://www.state.gov/s/l/releases/remarks/
139119.htm. The choice of weaponry in a particular use of force is
subject to a number of considerations; and in all cases, this
administration reviews the rules governing targeting operations to
ensure that U.S. operations are conducted consistent with law of war
principles, including the principles of distinction and
proportionality.
Question. Section 2(b) of Public Law 107-40 states ``Consistent
with section 8(a)(1) of the War Powers Resolution, the Congress
declares that this section is intended to constitute specific statutory
authorization within the meaning of section 5(b) of the War Powers
Resolution.'' In light of this provision, does the administration
believe there is any doubt that applicable requirements under the War
Powers Resolution for congressional authorization have been satisfied
with respect to the use of military force, including strikes by
[unmanned] drones, against members of al-Qaeda?
Answer. The Administration does not believe there is any doubt that
the 2001 congressional authorization for the Use of Military Force
against al-Qaeda and associated forces authorizes all necessary and
appropriate military force including the use of drones against members
of al-Qaeda, consistent with the laws of armed conflict, and that such
authorization is sufficient for purposes of the War Powers Resolution.
Question. In a March 26 statement addressing the President's
authority to initiate military operations in Libya, you stated that the
Senate had passed a resolution, S. Res. 85, calling for a no-fly zone
in Libya. The relevant language in the resolution ``urge[d] the United
Nations Security Council to take such further action as may be
necessary to protect civilians in Libya from attack, including the
possible imposition of a no-fly zone over Libyan territory.''
Some have read your statement to suggest that the administration
believes that S. Res. 85 authorized the President to use military force
in Libya. This would be a puzzling interpretation given that the
language in question was addressed to the U.N. Security Council, not
the President, that it made no mention of any use of military force by
the United States, and that it was contained in a nonbinding resolution
of the Senate rather than a law enacted with the approval of the full
Congress.
To avoid further confusion on this point, is it the
administration's position that S. Res. 85 provided the
President legal authorization to use force in Libya?
Answer. I believed on March 26, as I do now, that S. Res. 85 was a
significant measure, inasmuch as it reflected the Senate's unanimous
recognition of the seriousness of the situation in Libya and of the
potential value of establishing a no-fly zone, which the United States
then helped to do. But it is not the administration's position--and I
have never suggested--that S. Res. 85 provided the President legal
authorization to use force in Libya.
Question. Do you believe the President has been well served by not
seeking congressional authorization for the Libya operations? What
advantages do you perceive the President to have gained by proceeding
without congressional authorization?
Answer. While the President has concluded that congressional
authorization was not legally required for U.S. participation in the
Libya operations as they have progressed to date, he has also made
clear that he would welcome such authorization, as it would present the
world with a unified position of the U.S. Government, strengthen our
ability to shape the course of events in Libya, and dispel any
lingering legal concerns. More specifically, the President has
expressed his strong support for S.J. Res. 20, as introduced by
Chairman Kerry and 10 original cosponsors on June 21. He has also
sought to ensure that the administration consult with Congress
extensively throughout the operation.
Question. On March 11, 2011, I wrote to Secretary Clinton to seek
answers to questions about the administration's March 7 statement with
regard to Article 75 of Additional Protocol I of the Geneva Conventions
of 1949. That statement indicated that ``The U.S. Government will . . .
choose out of a sense of legal obligation to treat the principles set
forth in Article 75 as applicable to any individual it detains in an
international armed conflict, and expects all other nations to adhere
to these principles as well.''
On May 18, 2011, I received a letter signed by the Acting Assistant
Secretary of State for Legislative Affairs purporting to respond to my
questions. The information contained with this letter was not
responsive to my questions.
Please respond to the following questions with regard to the
administration's March 7 statement:
a. The statement indicates that the U.S. Government will
``choose out of a sense of legal obligation'' to treat the
principles set forth in Article 75 as applicable in specified
circumstances. (emphasis added) Please describe the source of
the legal obligation referred to in the statement and the
considerations that led the administration to conclude that
such a legal obligation exists.
b. The statement indicates that the United States will treat
the principles set forth in Article 75 as applicable ``to any
individual it detains in an international armed conflict.''
(emphasis added) Does the administration regard these
principles also to apply to noninternational armed conflicts,
including the current armed conflict with al-Qaeda? If not,
which of the considerations that led the administration to
conclude that a legal obligation exists to apply Article 75
principles in international armed conflicts does the
administration believe are inapplicable to noninternational
armed conflicts?
c. Please explain the administration's understanding of the
effect of the statement as a matter of international law,
including any international legal obligations that may arise as
a result of the statement.
d. Please explain the administration's understanding of the
effect of the statement as a matter of U.S. law.
Answer. The administration's statement of March 7, 2011, resulted
from a comprehensive interagency review, including the Departments of
Defense, Justice, and State, of current U.S. law and military practice.
The statement also reflects the longstanding view of the United States
that Article 75 contains fundamental guarantees of humane treatment
(e.g., prohibitions against torture) to which all persons in the power
of a party to an international armed conflict are entitled. In 1987,
President Reagan informed the Senate that although the United States
had serious concerns with Additional Protocol I, ``this agreement has
certain meritorious elements . . . that could be of real humanitarian
benefit if generally observed by parties to international armed
conflicts.'' For this reason, he noted, the United States was in the
process of developing appropriate methods for ``incorporating these
positive provisions into the rules that govern our military operations,
and as customary international law.'' As a general matter, the
executive branch previously has taken the position that certain norms,
including those reflected in treaties to which the United States is not
a party (e.g., the Law of the Sea Convention, the Vienna Convention on
the Law of Treaties), constitute customary international law.
a. The administration determined that existing U.S. treaty
obligations, domestic law, and regulations related to the treatment of
detainees in armed conflict substantially overlap with the obligations
that Article 75 imposes on States Party to Additional Protocol I.
Examples of where many of the provisions of Article 75 are already
reflected in existing U.S. law and regulations include: Common Article
3 of the 1949 Geneva Conventions; the 1949 Geneva Convention Relative
to the Treatment of Prisoners of War; the 1949 Geneva Convention
Relative to the Protection of Civilian Persons in Time of War; the War
Crimes Act of 1996, as amended; the Detainee Treatment Act of 2005; the
Military Commissions Act of 2009; the Uniform Code of Military Justice;
DOD Directive 2310.01E (``The Department of Defense Detainee
Program''); and Army Regulation 190-8 (``Enemy Prisoners of War,
Retained Personnel, Civilian Internees and Other Detainees'').
Consistent with this set of existing and overlapping requirements in
U.S. law, the administration also determined that current U.S. military
practices are fully consistent with the requirements of Article 75.
Accordingly, the administration considered it appropriate to state that
the United States will choose to abide by the principles set forth in
Article 75 applicable to detainees in international armed conflicts out
of a sense of legal obligation, and that we would expect other states
to do the same.
b. Following our March 7 statement, there was some speculation as
to why we referred to the application of Article 75 specifically in the
context of ``international armed conflict.'' The simple explanation is
that Article 75 of Additional Protocol I, like all of Additional
Protocol I, is intended by its terms to be applied to international
armed conflict. Our statement should not be taken to suggest that
similar protections should not apply in noninternational armed
conflict. It only reflects the fact that corresponding protections with
respect to noninternational armed conflict are memorialized elsewhere--
in particular, in Common Article 3 of the 1949 Geneva Conventions and
Articles 4 through 6 of Additional Protocol II, both of which apply to
noninternational armed conflicts.
Although the United States is not yet party to Additional Protocol
II, as part of the review process described above, the administration,
including the Departments of State, Defense, and Justice, also reviewed
its current practices with respect to Additional Protocol II, and found
them to be fully consistent with those provisions, subject to
reservations, understandings, and declarations that were submitted to
the Senate in 1987, along with refinements and additions that we will
submit. Accordingly, on March 7, 2011, the administration also
announced its intent to seek Senate advice and consent to ratification
of Additional Protocol II as soon as practicable. We believe that
ratification of Additional Protocol II will be an important complement
to the step we have taken with respect to Article 75. We look forward
to working with you, as ranking member of the Senate Foreign Relations
Committee, on this most important matter.
c. As a matter of international law, the administration's statement
is likely to be received as a statement of the U.S. Government's opinio
juris as well as a reaffirmation of U.S. practice in this area. The
statement is therefore also likely to be received as a significant
contribution to the crystallization of the principles contained in
Article 75 as rules of customary international law applicable in
international armed conflict.
Determining that a principle has become customary international law
requires a rigorous legal analysis to determine whether such principle
is supported by a general and consistent practice of states followed by
them from a sense of legal obligation. Although there is no precise
formula to indicate how widespread a practice must be, one frequently
used standard is that state practice must be extensive and virtually
uniform, including among States particularly involved in the relevant
activity (i.e., specially affected States). The U.S. statement, coupled
with a sufficient density of State practice and opinio juris, would
contribute to creation of the principles reflected in Article 75 as
rules of customary international law, which all States would be
obligated to apply in international armed conflict. (The 168 States
that are party to Protocol I are of course already required to comply
with Article 75 as a matter of treaty law.)
e. As discussed above, the administration's statement followed from
a determination that existing U.S. law and regulations impose
requirements on U.S. officials that substantially overlap with the
requirements of Article 75. The statement does not alter those
statutory and regulatory requirements. If Article 75 were determined to
be customary international law, it would have the same effect on U.S.
law as other customary international legal norms. The United States has
long recognized customary international law, whether reflected in
treaty provisions or otherwise, as U.S. law (see, e.g., the Supreme
Court's discussion of customary international law in The Paquete Habana
175 U.S. 677 (1900)).
______
Responses of Legal Adviser Harold Koh to Questions Submitted by
Senator James E. Risch
Question. Were U.S. actions during Operation Odyssey Dawn
considered ``hostilities'' under your definition?
Answer. During the initial phase of the Libya operation, under
Operation Odyssey Dawn, our military actions in Libya were
significantly more intensive, sustained, and dangerous than they have
been since the handover to NATO's Operation Unified Protector. Had
Odyssey Dawn lasted for more than 60 days, it may well have constituted
``hostilities'' under the War Powers Resolution's pullout provision.
Question. Were any actions the United States took during Operation
Unified Protector considered ``hostilities'' under your definition?
Answer. For the reasons set forth in my testimony, the
administration believes that the United States constrained, supporting
role in Operation Unified Protectora--which is limited in the nature of
the mission, limited in the risk of exposure to U.S. Armed Forces,
limited in the risk of escalation, and limited in the choice of
military means--has not constituted the kind of ``hostilities''
envisioned by the War Powers Resolution's 60-day pullout rule.
Question. You testified that ``no casualties, no threat of
casualties, no significant engagement'' of the U.S. military affirms
your opinion that U.S. actions in Libya do not amount to
``hostilities'' envisioned by the War Powers Resolution. This position
implies a threshold for a conflict to qualify as ``hostilities'' as
contemplated by the War Powers Resolution. Please define that
threshold?
You referenced in your testimony that the United States has
dropped a limited number of munitions during strike missions,
does your threshold of ``hostilities'' take into consideration
the improved lethality of the individual ordinance used?
Does the amount of damage inflicted by U.S. forces matter in
this equation?
Does the size of the force (manpower) trigger the invocation
of the term ``hostilities''?
Answer. My testimony explained the administration's position as to
why the United States current military operations in Libya--which are
limited in the nature of the mission, limited in the risk of exposure
to United States Armed Forces, limited in the risk of escalation, and
limited in the choice of military means--do not fall within the War
Powers Resolution's automatic 60-day pullout rule. My testimony further
explained that Congress in 1973 did not attempt to define a rigid
threshold for ``hostilities'' to be applied mechanically to all
situations. Nevertheless, our analysis does take into consideration the
lethality of ordnance used, the damage inflicted by U.S. forces, and
the size of the U.S. force, as reflected in its discussion of three
factors: the military means, the nature of the mission, and the risk of
escalation. As I explained during my testimony, if any of the critical
facts regarding the underlying mission were substantially different, it
might warrant reaching a different conclusion regarding the existence
of ``hostilities.''
Question. You testified that we were not ``carpet bombing'' Libya
and that the current number of drone strikes were insignificant to the
threshold of ``hostilities.'' Beyond what you see as these clear lanes,
what is the amount of force necessary to trigger the resolution's 60-
day pullout requirement?
Answer. With regard to drones, I stated unambiguously in my oral
testimony that they do not get a ``free pass'' under the War Powers
Resolution. The resolution, which by its terms focuses on the
``introduction of United States Armed Forces'' into ``hostilities,''
was not designed with unmanned aerial vehicles in mind, but that does
not mean that drone strikes are insignificant to the threshold of
hostilities, or that they can never trigger the 60-day rule. To the
contrary, both the number and nature of U.S. drone strikes are
significant to the ``hostilities'' determination, although in the
abstract, it is difficult to state precisely what level of U.S. kinetic
force, standing alone, would be sufficient to trigger the pullout
provision in any given situation. Taking into account all of the
factors in the current Libya operation that are identified in my
testimony, the current use of drones in itself does not, in the
administration's view, compel the conclusion that the resolution's
automatic pullout provision is triggered.
Question. You testified that the conflict has presented new
military technology that was not envisioned by the drafters of the
original bill. However, aerial refueling, ISR, and support flights are
not new elements of conflict and were in use, in various forms, when
the War Powers Resolution was debated and enacted in 1973. The War
Powers Resolution specifically allows for an exception for activities
supporting the command structure of organizations like NATO, but the
activities listed above were not exempted out of the resolution's
application. Doesn't the use of nonexempted forces mean, by
implication, that the military is involved in hostilities outside of
the exempted forces?
Answer. I believe this question refers to sections 8(b) and 8(c) of
the War Powers Resolution. As explained in footnote 13 of my testimony,
sections 8(b) and 8(c) do not imply that all NATO activities in which
the United States participates, no matter how modestly, must be
subjected in their entirety to the 60-day clock. Those provisions set
out certain parameters for when U.S. participation in the military
activities of foreign forces would come within the ambit of the
resolution. While the United States participation in this NATO
operation is not exempted from the requirements of the resolution, my
point in that footnote was that the U.S. forces in Libya--not the whole
of NATO forces--are the proper subject for the ``hostilities'' analysis
required by the resolution's language. I agree that support activities
such as aerial refueling and ISR were known to the drafters of the War
Powers Resolution, but I have not seen evidence to suggest that such
nonkinetic activities would trigger the 60-day clock in the context of
a NATO operation such as this.
Question. Before the Libyan conflict began, U.S. military personnel
serving on ships within 110 nautical miles of Libyan shores did not
receive Hostile Fire and Imminent Danger pay for reasons linked to
Libya. Today they do. So, too, do U.S. Air Force pilots flying sorties
over Libya. If, in fact, the U.S. military is not engaged in
``hostilities,'' what is the administration's legal reason for giving
$225 per month in extra pay to U.S. forces assisting with military
actions associated with Operation Odyssey Dawn and Operation Unified
Protector?
Answer. As I explained in footnote 14 of my written testimony, the
executive branch has long understood its application of the ``danger
pay'' statute to be distinct from its application of the War Powers
Resolution. Similar danger pay is being given to U.S. forces in
Burundi, Greece, Haiti, Indonesia, Jordan, Montenegro, Saudi Arabia,
Turkey, and many other countries in which no one is seriously
contending that ``hostilities'' are occurring for purposes of the War
Powers Resolution.
Question. On what day did you reach your final conclusion that the
United States was no longer engaged in ``hostilities''? When was it
adopted by the President as the position of the administration?
Answer. As you can understand, I cannot comment on the internal
decisionmaking procedures of the President and the administration with
respect to legal matters. However, it is a matter of public record, as
Chairman Kerry noted in the hearing, that from the beginning of the
Libya operation the administration stated that it intended to act
consistently with the War Powers Resolution and has maintained that
position throughout the operation.
Question. Would you consider the bombing (attempted or actual) of a
U.S. embassy by another nation-state ``a national emergency created by
attack upon the United States, its territories or possessions, or its
armed forces'' under the war powers act?
Answer. Yes, I believe that an attempted or actual bombing of a
United States embassy certainly could rise to that level, although no
such event has occurred in Libya. I note, however, that the ``national
emergency'' standard articulated in section 2(c) of the War Powers
Resolution is not linked, either textually or logically, to the
separate question of whether U.S. forces are in a situation of
``hostilities'' under sections 4(a)(1) and 5(b) of the resolution. By
its plain terms, section 2(c) is also precatory in nature, and it has
never been treated by the executive branch as having binding legal
force.
Question. Does President Obama ignoring the War Powers Resolution
simply add to the history of ``a consistent pattern of executive
circumvention of legislative constraint in foreign affairs,'' as you
observed on page 38 of your book, ``The National Security
Constitution''?
Answer. I do not accept the premise that ``President Obama [is]
ignoring the War Powers Resolution'' or otherwise trying to circumvent
the legislative branch. To the contrary, as my testimony explained,
throughout the Libya operation, the President has never claimed the
authority to take the nation to war without congressional
authorization, to violate the War Powers Resolution or any other
statute, to violate international law, to use force abroad when doing
so would not serve important national interests, or to refuse to
consult with Congress on important war powers issues. The
administration recognizes that Congress has powers to regulate and
terminate uses of force, and that the War Powers Resolution plays an
important role in promoting interbranch dialogue and deliberation on
these critical matters. The President has expressed his strong desire
for congressional support, and has made clear his commitment to acting
consistently with the resolution. Of critical importance in an area
where the law is unsettled, he has done so transparently and in a
manner that allows Congress to respond if it disagrees with his reading
of the resolution.
Question. Previous administrations have used an interagency process
led by the Department of Justice's Office of Legal Counsel (OLC) to
receive credible and objective legal advice, particularly regarding
constitutional matters. During this process, OLC seeks input from
multiple agencies before arriving at a conclusion. In order to justify
continuing kinetic operations in Libya without congressional
authorization, it appears President Obama decided truncate this process
and associate himself with your legal opinion. Why did the
administration choose this course of action? What precedent is he
setting regarding the Executive's process for attaining credible and
objective legal advice?
Answer. As I explained during my testimony, I cannot comment on the
internal decisionmaking procedures of the President or the
administration. No one disputes two basic facts here--that President
Obama made this decision, and that in the end it was the President's
decision to make.
Question. During your nomination hearing in April 2009, you
testified before this committee that, because the U.N. ``soundly
defeated'' a resolution calling NATO's action in Kosovo unlawful that
was a de facto authorization of the NATO mission.\1\ Last week, the
House of Representatives soundly rejected authorizing the President's
use of force in Libya. Under your legal reasoning, shouldn't Congress's
rejection of force also imply the President has no authority to be in
Libya?
---------------------------------------------------------------------------
\1\ Senator Jim DeMint, Question for the Record #10, April 28,
2009.
Answer. No. To date, Congress has not acted in a way that would
amount to ``rejection of force'' in Libya. Nor has Congress acted
either to authorize or deauthorize the Libya operation. While the
President has taken the position that congressional authorization was
not legally required for the Libya operation as it has progressed thus
far, he has also made clear that he would welcome such authorization.
At my nomination hearing, I cited the overwhelming Security Council
vote rejecting a resolution that would have deemed the use of force in
Kosovo unlawful as one piece of evidence, among others, that the Kosovo
intervention enjoyed international support--as the Libya operation
clearly does by virtue of U.N. Security Council Resolution 1973 and the
support of NATO, the Arab League, and the Gulf Cooperation Council, as
well as Libya's own Transitional National Council. The House of
Representatives' vote against a particular resolution authorizing the
President to use force in Libya does not imply that the President lacks
---------------------------------------------------------------------------
the domestic legal authority to be in Libya.
Question. In response to questions in your nomination hearing, you
criticized the Bush administration for not seeking a new U.N.
resolution specifically authorizing the use of force in Iraq. You
stated that ``I believe that one consequence of this lack of consensus
as to whether the resolutions provided the necessary support was that
it hindered U.S. efforts to attract as broad political support for our
military actions in Iraq as we would have liked.'' \2\
---------------------------------------------------------------------------
\2\ Senator Jim DeMint, Question for the Record #7, April 28, 2009.
Do you believe broad international support is sufficient to
justify U.S. engagement in Libya?
Even if, as you argue, congressional authorization is not
necessary, is it not prudent for the President to seek
congressional authorization in order to ensure ``broad
political support'' from the American people?
Answer. As my testimony made clear, I do not believe that broad
international support is alone sufficient to justify the legality of
our engagement in Libya, although the nature and degree of
international support might bear on factors that are relevant to the
War Powers analysis in this case, such as the limited object and scope
of our military mission and the limited risk of escalation. While the
President has concluded that congressional authorization was not
legally required for the Libya operation as it has progressed to date,
he has also made clear that he would welcome such authorization, as it
would present the world with a unified position of the U.S. Government,
strengthen our ability to shape the course of events in Libya, and
dispel any lingering legal concerns. More specifically, the President
has expressed his strong support for S.J. Res. 20, as introduced by
Chairman Kerry and 10 original cosponsors on June 21. He has also
sought to ensure that the administration consult with Congress
extensively throughout the operation.
Question. Referring to President Bush and the prospect for war with
Iran, on December 4, 2007, then-Senator Joe Biden said, ``the President
has no constitutional authority to take this Nation to war against a
country of 70 million people, unless we're attacked or unless there is
proof that we are about to be attacked. And if he does--if he does--I
would move to impeach him. The House obviously has to do that, but I
would lead an effort to impeach him.'' \3\ Do you agree that it is an
impeachable offense for the President to use force without prior
congressional authorization unless we are attacked or under imminent
threat of attack, as then-Senator Biden asserted in his statement?
---------------------------------------------------------------------------
\3\ Senator Joseph R. Biden Interviewed on MSNBC by Chris Matthews,
Dec. 4, 2007, 2007, transcript accessed at http://www.msnbc.msn.com/id/
22114621/ns/msnbc_tv-hardball_with_
chris_matthews/.
Answer. I believe that the question of an ``impeachable offense''
is highly fact-dependent and cannot be answered in such a general
fashion. I would simply emphasize that both Republican and Democratic
administrations have consistently taken the position over the past
several decades that the President has constitutional authority to
direct certain uses of force abroad to protect important national
interests without prior congressional authorization, even in the
absence of an attack or an imminent threat of attack.
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