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June 24, 2011

Libya and the War Powers Act

In a recent post, my colleague George Dargo suggested that the Obama administration has no reason not to comply with the terms of the War Powers Act regarding our support of NATO forced in Libya. One of the members of the Obama administration who has argued that the War Powers Act does not apply is Harold Koh, the Legal Advisor to the State Department. He recently addressed an audience of international law and law of war experts at the annual International Law Conference, hosted by the U.S. Naval War College.

Mr. Koh sought to highlight ways in which the Obama administration’s approach to many of these issues fundamentally differed from his predecessor. Among the topics discussed was congressional authorization for U.S. military involvement and support for rebels in Libya who are seeking to topple the Gaddafi regime. The War Powers Act requires the President to seek congressional authorization for U.S. forces engaged in hostilities for more than 60 days. The Obama administration has been under pressure from some members of Congress to seek this authorization for continued military action. The administration’s position is that the War Powers Act does not apply because the nature of our military involvement does not rise to the level of “hostilities” as defined by the War Powers Act.

Mr. Koh repeated that assertion in his address. In addition, he made the following points:

- The military involvement in Libya is not the kind of military action that Congress contemplated when it passed the War Powers Act.
- If Congress wants to prevent the President from supporting the rebel forces in Libya, then Congress must take some affirmative action.
- If Congress decides to withdraw U.S. military support for the rebels, then it should do so with the understanding that it is giving Colonel Gaddafi the green light to resume the slaughter of his own citizens.

The War Powers Act is certainly fraught with problems, not the least of which it that it requires the President to remove U.S. forces from hostilities unless Congress takes some affirmative action authorizing their continued participation. Mr. Koh, however, repeated several times that the Obama administration was not challenging the constitutionality of the War Powers Act; it was simply arguing, primarily for policy reasons, that the Act does not apply to the situation in Libya.

Mr. Koh might have been seeking to convince the audience that, because the administration was not attacking the constitutionality of the War Powers Act, its view of presidential power is more limited than Mr. Obama’s predecessor. I am not sure that is the case.

First, claiming that the President does not have to seek Congressional authorization and that, if Congress wants to prevent the President from committing military support to NATO’s effort in Libya, then Congress must take some affirmative step turns the law on its head. One of the primary purposes of the War Powers Act was to prevent the President from committing military forces and then escalating that commitment over time without congressional approval. Recognizing that the President should have some leeway, Congress gave the President a 60 day window to commit forces into hostilities, and then make the case to Congress at the end of the 60 days why those forces should remain engaged in hostilities. Mr. Koh ignores this very fundamental purpose of the War Powers Act when he claims that the situation is Libya is not the kind of military engagement contemplated by the War Powers Act. The President’s actions seem to be exactly what Congress was concerned about when it passed the Act.

Even more interesting and, perhaps, more troubling is Mr. Koh’s policy assertion that if U.S. forces were to disengage from Libya, then Colonel Gaddafi would be able to resume killing his own citizens. This may well be true, but it is hardly a reason why the President can ignore the legal requirement to seek congressional authorization. In essence, Mr. Koh claims that the President can ignore the requirements of the statute if the President believes that compliance would frustrate important policy objectives. This view of presidential power is not so different than the arguments made by the Bush administration lawyers that the President did not have to comply with the requirements of the Foreign Intelligence Surveillance Act (FISA) because FISA interfered with his Article II powers as commander-in-chief.

While Mr. Koh’s argument may be subtler, it may also be more disingenuous. At least the Bush administration lawyers openly asserted that, in certain matters of national security, the President had the authority to ignore laws passed by Congress. The Obama administration seems to me making that same argument under the guise of statutory interpretation.

Victor Hansen

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