State Department Legal Adviser Harold Koh went before the Senate yesterday to defend the administration's use of military force in Libya without congressional authorization.
Koh's interpretation of the War Powers Act allowed the U.S. to continue military operations in Libya absent congressional authorization. President Obama accepted Koh's interpretation over the advice of Attorney General Eric Holder, Pentagon General Counsel Jeh Johnson, and the Office of Legal Counsel. While the president is not obligated to follow the OLC's advice, in practice the president rarely disregards it.
The crux of Koh's interpretation is that because American service members are not at great risk given the military capabilities of Libyan dictator Moammar Ghadafi, the conflict in Libya does not amount to "hostilities" under the WPR.
"[T]he operative term, "hostilities," is an ambiguous standard, which is nowhere defined in the statute," Koh testified. "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." According to the New York Times, "American warplanes have struck at Libyan air defenses about 60 times, and remotely operated drones have fired missiles at Libyan forces about 30 times."
“By that reasoning, we could drop a nuclear bomb on Tripoli and we would not be involved in hostilities,” Republican Senator Bob Corker said. He went further, though, seemingly questioning the administration's reliance on the 2001 Authorization to Use Military Force to execute drone strikes on suspected terrorist targets outside of Afghanistan. "This administration has established a precedent for this country by taking this argument that any president, Republican or Democrat, can use Predator (drones) in any country they wish — because that is limited hostilities — without Congress being involved.”
Corker was one of five Republican senators on the Foreign Relations Committee who voted against a resolution that would authorize military operations in Libya for a year and prohibit the deployment of ground troops. A similar resolution failed in the House last week, but this one contains a key difference. As Marty Lederman writes, in addition to authorizing limited U.S. involvement in Libya, the resolution contains an amendment from Republican Senator Dick Lugar, which would prevent presidents from using "ambiguities" in the War Powers Act from being exploited by future presidents.
The amendment would make it clear that the actions the U.S. has taken in Libya "constitute hostilities within the meaning of the War Powers Resolution," and therefore require congressional approval.
There's no guarantee, though, that will placate the House, particularly since it still authorizes military intervention in Libya. That could remain a deal breaker for anti-war Democrats or "Jacksonian" Republicans. And ultimately, rebuking Obama without curtailing future (Republican) presidents' ability to act unilaterally may be what the majority wants -- until recently, much of the GOP believed the War Powers Act was unconstitutional.
