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US Legal Deadline for Libya Expires

Michael Bowman June 19, 2011

The Obama administration continues to defend the legality of U.S. military engagement in Libya, as a 90-day window for securing congressional approval of the operation expires.

Sunday marked 90 days since President Barack Obama notified Congress about the use of American military power in the skies over Libya - what is now a NATO-led operation to protect civilians and, it is hoped, force leader Moammar Gadhafi from power.

Under a law enacted in 1973, U.S. presidents have 60 days to secure congressional authorization for major foreign military engagements, with an additional 30 days to withdraw if no authorization is granted and no extension of the deadline is approved.

Congress has neither authorized military action in Libya nor given President Obama additional time to comply with the War Powers Resolution. Appearing on the U.S. television program Fox News Sunday, Defense Secretary Robert Gates was asked if the administration is flouting the law. “I believe that President Obama has complied with the law consistent in a manner with virtually all of his predecessors. I do not think he is breaking any new ground here," he said.

The administration argues the United States is playing a support role in a NATO operation with no troops on the ground, and therefore no formal congressional approval of the mission is required.

Last week, House Speaker John Boehner challenged the administration’s reasoning. “We are part of an effort to drop bombs on Gadhafi’s compounds. It does not pass the ‘straight face’ test [is not a reasonable assumption], in my view, that we are not in the midst of hostilities," he said.

Some of the president’s Democratic allies in Congress have joined a bipartisan legal effort to force an end to the Libya campaign. Democratic Congressman Dennis Kucinich is one of 10 legislators who filed a federal lawsuit last week. “The Constitution of the United States makes it abundantly clear that no president can go to war unilaterally without the permission of the Congress. Neither NATO nor the U.N. trumps the United States Constitution. This is about stopping a war now," he said.

But not all members of Congress believe in the War Powers Resolution, arguing it unwisely and unconstitutionally hampers the president’s role as commander-in-chief.

Republican Senator Lindsey Graham of South Carolina, appearing on NBC’s Meet the Press program, said, “The War Powers Act is unconstitutional, not worth the paper it is written on. I think it is an infringement on the power of the commander-in-chief.”

But Graham faults President Obama for, as he sees it, failing to adequately explain to Congress and the American people why the fate of Libya merits U.S. intervention. “The president has done a lousy job of communicating and managing our involvement in Libya. If we fail against Gaddhafi, that is the end of NATO. Egypt is going to be overrun, and the mad dog of the Mideast, Gadhafi, if he survives this, you are going to have double the price of oil that you have today, because he will take the whole region and put it into chaos,' he said.

Also appearing on Meet the Press was Democratic Senator Richard Durbin of Illinois, who defended existing law. “It is true, the War Powers Act is an infringement on the president’s power as commander-in-chief. So is the Constitution, which makes it clear that the American people make decisions about going to war through members of Congress," he said.

Durbin said the situation in Libya warrants U.S. intervention, but only with congressional authorization. “We are going to have a limited-duration conflict to stop Gadhafi. That was the right thing. But I think the War Powers Act and [U.S.] Constitution make it clear that hostilities by remote control are still hostilities. We are killing with drones what we would otherwise be killing with fighter planes," he said.

The United States has also used military drones over Pakistan and Yemen.

Last month, Democratic Senator John Kerry of Massachusetts and Republican Senator John McCain of Arizona introduced a bipartisan resolution expressing congressional support for U.S. military action in Libya. The measure has not been voted on, but the Obama administration has said it would welcome such a resolution.

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