President Barack Obama’s explanation of why he can continue the U.S. mission in Libya without lawmakers’ approval didn’t immediately satisfy critics in Congress, and legal scholars were divided over how the law should be interpreted.
The administration said yesterday in a 32-page unclassified report sent to Congress that U.S. military involvement in the Libya campaign led by the North Atlantic Treaty Organization doesn’t need congressional authorization because the U.S. forces are providing primarily a support role and aren’t engaged in combat with hostile forces.
The report was released after House Speaker John Boehner wrote to Obama, saying that without congressional backing, the mission would violate the War Powers Resolution of 1973 as of June 19. Boehner spokesman Brendan Buck said the Ohio Republican would review the report and indicated that it didn’t satisfy all the questions Boehner has raised.
“The creative arguments made by the White House raise a number of questions that must be further explored,” Buck said.
Congressional authorization isn’t required, the report said, because U.S. military operations in Libya are distinct from the kind of “hostilities” the resolution is meant to address. For example, it says, the U.S. role doesn’t involve sustained fighting, active exchange of fire with hostile forces or ground troops.
“U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo,” the report said.
Robert Turner, a law professor and associate director of the Center for National Security Law at the University of Virginia in Charlottesville, Virginia, said there is “absolutely no question in my mind” that Obama’s position is justified and that there was a long history of U.S. involvement in military actions without congressional approval.
“If U.S. combat forces are not engaged in combat operations, then the War Powers Resolution doesn’t apply,” he said.
Turner also said he believes that the War Powers Resolution is unconstitutional -- although Obama’s lawyers are not making that argument.
Matthew Waxman, an associate professor at Columbia Law School in New York and a former official in President George W. Bush’s administration, agreed that the resolution’s constitutionality is open to debate. Even so, he said Obama’s position “is likely to be highly contentious,” given how essential the U.S. role is in the NATO campaign.
“One might point out that the United States is contributing the vast bulk of support operations, without which NATO’s Libya operations would almost certainly cease,” he said. “And the objectives of this campaign are now quite broad, seeming to include knocking out the Libyan leadership, so one could also quite plausibly characterize these operations as major ones.”
The report comes as Republicans and some Democrats are challenging the continuation of the mission, spurred by what lawmakers have described as a combination of war fatigue, perplexity over the strategic purpose of the U.S. mission in Libya and Obama’s failure to consult Congress on it.
The Pentagon has spent $715.9 million on military and humanitarian operations in Libya through June 3, the report said. The total projected cost to the Pentagon is projected to be about $1.1 billion through Sept. 30, the end of the second 90-day NATO authorization, it said. All of the money will come out of the regular defense budget, according to the report.
In addition, the U.S. has spent $81 million on separate humanitarian work, including supplies and logistics. The State Department through June 3 has spent $3.7 million.
Boehner told Obama in a letter June 14 that without congressional authorization, the War Powers Resolution of 1973 requires a cessation of U.S. military involvement and withdrawal of forces as of 90 days after the start of a conflict — June 19, in this case. That includes 60 days plus a 30-day extension.
Boehner’s demand for more information about the operation follows the 268-145 vote by the House of Representatives on June 3 approving a resolution sponsored by Boehner rebuking Obama for failure to state a “compelling” national security “rationale” for supporting the bombing campaign Qaddafi.
Libya also has been a topic for the Republicans seeking to challenge Obama in the 2012 election. In the June 13 debate among Republican presidential hopefuls in New Hampshire, Representative Michele Bachmann of Minnesota called Obama’s Libya strategy “substantially flawed.” Mitt Romney, a former Massachusetts governor, said that a lesson of the U.S. war in Afghanistan is that U.S. troops “shouldn’t go off and try to fight a war of independence for another nation.”
White House press secretary Jay Carney said before the release of the report that it will “answer a lot of the questions that members have.”
Carney said Obama has kept the promises he made when he announced in March that the U.S. joined allies in enforcing a no-fly zone over Libya.
“After an initial phase -- days, not weeks, as he said, as he promised -- the United States stepped back from its lead role in the Libya mission, turned over lead responsibility to NATO, and has been in a support mission ever since,” Carney said.
Obama also sent a consolidated report on U.S. involvement elsewhere in the world, including the war against terrorism, the conflicts in Afghanistan and Iraq, and a small U.S. role in Egypt, where a 40-member security force was sent in to protect U.S. citizens and property.
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