The State Department's top lawyer Tuesday defended the legality of President Obama's decision to intervene militarily in Libya, but U.S. senators called the arguments "preposterous" and "contorted" and said congressional authorization should have been sought.
Harold Koh, the department's legal adviser, said Obama was acting lawfully in Libya even though the U.S. Constitution says that Congress declares war and the 1973 War Powers Resolution prohibits U.S. armed forces from being involved in hostilities for more than 60 days without authorization from Congress.
Koh told the Senate Foreign Relations Committee that no such authorization was needed for the NATO-led Libya mission, now more than three months old, because the U.S. role was too limited for it to be considered a war, or even "hostilities" under the War Powers Resolution.
Senator John Kerry, the panel's Democratic chairman who is close to the White House, endorsed the administration's view.
But senators from both parties criticized it as too narrow and said Obama should have sought lawmakers' authorization for the military involvement.
"The chairman mentioned (that) since no American is being shot, there's no hostilities. By that reasoning we could drop a nuclear bomb on Tripoli and we would not be involved in hostilities, and this goes to the sort of preposterous argument that is being made," said Senator Bob Corker, a Republican.
The Obama administration had a "contorted definition of hostilities," said Senator Jim Webb, a Democrat and former U.S. Navy secretary.
When a military operation lasts for months and costs billions, "even under the NATO fig leaf," Webb said, "I would say that's hostilities."
Koh refused to comment on reports that Obama ignored the advice of Pentagon and Justice Department lawyers who argued that U.S. military intervention in Libya required congressional authorization.
Senator Richard Lugar, the ranking Republican senator, said neither the Pentagon nor Justice had sent anyone to testify to the panel, although they were asked.
The United States and its NATO allies launched the U.N.-backed mission against Libya in March, aiming to prevent Muammar Gaddafi's forces from attacking civilians in regions opposed to his rule. The mission now appears to have the unstated goal of driving Gaddafi from power.
Since NATO took over the operation March 31, the United States has conducted 755 strike sorties, including 119 in which the planes actually fired at targets. Thirty-nine of the strikes involved the use of drone aircraft.
The United States is also providing reconnaissance, refueling, planning and other services to NATO.
The Senate committee was expected to vote later Tuesday on a resolution sponsored by Kerry and John McCain that would authorize the U.S. role in Libya.
It was unclear whether it would be approved. Lugar and other lawmakers are proposing numerous amendments that would limit the mission.
"Even if one believes that the President somehow had the legal authority to initiate and continue U.S. military operations in Libya, it does not mean that going to war without Congress was either wise or helpful to the operation," Lugar said.
Last week, the Republican-controlled U.S. House of Representatives delivered a rebuke to Obama by refusing a measure similar to the Kerry-McCain resolution.
Koh, however, urged senators to support the Kerry-McCain resolution, saying this would show a "united front" with U.S. allies and help to ensure that Gaddafi does not get the upper hand in his country's civil war.
Koh said U.S. actions were not "hostilities" under the law because the mission, the exposure of U.S. armed forces, the risk of escalation and the military means used by the United States were all limited.
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