Administration Pushes Back Against War Powers Concerns

By Eric Rice

State Department Legal Advisor Harold Koh was greeted rather rudely Tuesday by members of the Senate Foreign Relations Committee, before whom he testified on the legality of American military actions in Libya.

“This administration is acting lawfully, consistent with both the letter and spirit of the Constitution and the War Powers Resolution,” Koh said.

Lawmakers on both sides of the aisle on Capitol Hill have called on President Obama to explain how he is not in violation of the War Powers Act, which requires congressional approval of the use of military within the first 60 days of action.

Koh testified that a perfect storm of unique events in this case has created a situation where the hostilities clause of the War Powers Resolution does not apply.

Koh defined the limited nature of the U.S.’ role in Libya as being “a constrained and supporting role as part of a NATO led, multi-national civilian protection mission, charged with enforcing a UN Security Council resolution.”

Koh said that the Obama administration is using that limited role as justification behind the idea that the War Powers Resolution does not apply to Libya.

“This circumstance is virtually unique, not found in any of the recent historical situations in where the hostilities question as been debated,” he said.

The United States, according to Koh, is currently flying only a quarter of all “sorties” over Libya, and just ten percent of the drone strike missions. He added that the fact that the U.S. does not have ground troops in Libya means that its armed forces are hardly in harm’s way, a fact he notred to argue that the War Powers Resolution does not apply to the Libya campaign. Koh later argued that the mission will likely not escalate given the fact that Libyan ruler Moammar Gaddafi appears neutralized.

While Committee Chairman John Kerry (D-Mass.) valiantly defended the administration, several other Members disagreed strongly. 

Sen. Bob Corker (R-Tenn.) called Koh’s argument “cute,” and said that Koh was probably “high-fiving outer academics” over it.  He also said that the administration was “sticking a stick in the eye of Congress” by not seeking congressional authorization. 

Corker told Koh that he voted against his nomination in 2009 out of fear that the legal scholar would make U.S. law “less important than international law.” He also told Koh that his argument “undermined the credibility of this administration, undermined the integrity of the War Powers Act and did a disservice to this country.” 

Kerry, however, jumped to the administration’s defense, telling Corker that his facts were “just incorrect.”

“I’m not going to sit here and let everyone throw the dart at the White House,” Kerry said.

Sens. James Risch (R-Idaho) and Jim Webb (D-Va.) also took issue with Koh’s testimony, saying that the legal definition of hostilities does not match up with a common sense definition of the word.  They also worried about the precedent being set, especially with regard to drone warfare. 

Koh recognized the legitimacy of their concerns, and suggested that the War Powers Resolution should be “modernized” to better fit future scenerios that could involve unmaned aircraft (as Libya does) and cyber-warfare.  

The Committee was expected to vote later today on a bill authorizing military action in Libya for no more than one year.