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Senators Question Obama Assertion Libya Mission Not Hostilities

June 28, 2011

June 28 (Bloomberg) -- President Barack Obama’s assertion that U.S. warplanes aren’t engaged in hostilities by helping allies bomb Libya was greeted with skepticism from Democrats and Republicans at a Senate hearing.

Lawmakers challenged the president’s argument by questioning State Department legal adviser Harold Koh, whose opinion formed the basis of Obama’s assertion.

The 1973 War Powers Resolution, enacted during the Vietnam war, requires the president to notify Congress of any hostilities in 48 hours and to withdraw forces in 60 to 90 days if Congress doesn’t authorize the mission. Obama contends he doesn’t need congressional authorization for the Libya mission.

“Are you glad you created an issue” by having “basically taken a stick” to “stick it in the eye of Congress?” Tennessee Republican Bob Corker asked Koh at the Senate Foreign Relations Committee hearing today in Washington.

“If you felt a stick was stuck, that is not the goal,” Koh said.

The committee plans later today to consider a proposed bipartisan resolution that would authorize, for up to a year, U.S. support of the North Atlantic Treaty Organization’s bombardment of forces loyal to Libyan dictator Muammar Qaddafi.

Last week, the House of Representatives refused to authorize Obama to continue support of the NATO mission. Even so, members also defeated legislation intended to bar U.S. forces from engaging in hostilities. The House will likely revisit the issue next month when it resumes debate, after a week-long recess, on defense appropriations.

‘Narrow’ Role

Koh, a former Yale Law School dean who wrote about the War Powers Resolution during his academic career, said the “narrow” role of U.S. warplanes in the mission doesn’t meet the definition of hostilities.

The circumstances in Libya are “virtually unique,” he said, because the “exposure of our armed forces is limited, there have been no U.S. casualties, no threat of U.S. casualties” and “no exchange of fire with hostile forces.”

With a “limited risk of serious escalation” and the “limited military means” employed by U.S. forces, “we are not in hostilities envisioned by the War Powers Resolution, Koh said.

Corker told Koh his advice to the president has “undermined the credibility of this administration” and the integrity of the War Powers Resolution.

By “taking this very narrow approach, you have done a great disservice to our country,” Corker said.

Constituents Mystified

Democrats and Republicans said they and their constituents were mystified by the administration’s view.

Pennsylvania Democrat Bob Casey said voters in his state “have real concerns about this policy, just in the clear impression that’s been created that we are engaged in hostilities of one kind or another.”

Virginia Democrat James Webb told Koh that Obama had taken a “contorted legal definition of hostilities.”

“I would say that’s hostilities” when “you have an operation that goes on for months, that costs billions of dollars” and U.S. warplanes “dropping bombs and killing people,” Webb said.

The panel’s chairman, Massachusetts Democrat John Kerry, defended the president, saying the resolution doesn’t apply because “no American troops are on the ground and we are not going to put them there.”

Delaware Democrat Chris Coons also supported Obama, telling Koh that he found “your focus on unique facts of this situation largely compelling.”

‘Expedience’ Over ‘Responsibility’

Indiana Senator Dick Lugar, the panel’s top Republican, disagreed and said Obama’s decision not to seek a congressional authorization put “expedience above constitutional responsibility.”

Lugar said U.S. forces are contributing 70 percent of the intelligence capabilities and most refueling for the mission.

“The fact that we are leaving most of the war shooting to other countries does not mean that the United States is not involved in acts of war,” Lugar said.

Koh said U.S. warplanes have fired only 10 percent of the bombs deployed and that Predator drones fired missiles on “discrete targets’” to aid civilian protection.

Koh declined to comment on news reports that administration lawyers disagreed over whether the War Powers Resolution applied to the Libya mission. The New York Times reported that Obama overruled lawyers at the Justice and Defense Departments who argued that the Libyan operation should require approval from Congress.

Lugar has proposed amendments to the resolution sponsored by Kerry and Arizona Republican John McCain that would limit U.S. military activities to aerial refueling of NATO planes, intelligence or surveillance flights and search and rescue missions. That language is similar to the defeated House measure to bar U.S. forces from engaging in hostilities.

Ohio Democratic Representative Dennis Kucinich and Michigan Republican Justin Amash have introduced an amendment that would bar all U.S. funds for the Libya mission, starting Oct. 1.

--Editors: Laurie Asseo, Jim Rubin.

To contact the reporter on this story: James Rowley in Washington at

To contact the editor responsible for this story: Mark Silva at

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