I thank Chairman Kerry for meeting to consider the legal and Constitutional basis for ongoing U.S. military operations in Libya. The President declined to seek Congressional authorization before initiating hostilities. Subsequently, he has carried them out for more than three months without seeking or receiving Congressional authorization.
This state of affairs is at odds with the Constitution, and it is at odds with the President’s own pronouncements on war powers during his presidential candidacy. For example, in December 2007, he responded to a Boston Globe question by saying: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
Before our discussion turns to Constitutional and legal issues, I believe it is important to make a more fundamental point. 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.
The vast majority of members of Congress, constitutional scholars, and military authorities would endorse the view that Presidents should seek Congressional authorization for war when circumstances allow. There is a near uniformity of opinion that the chances for success in a war are enhanced by the unity, clarity of mission, and constitutional certainty that such an authorization and debate provide.
There was no good reason why President Obama should have failed to seek Congressional authorization to go to war in Libya. A few excuses have been offered ranging from an impending Congressional recess to the authority provided by a UN Security Council Resolution. But these excuses do not justify the President’s lack of Constitutional discipline. Twelve days before the United States launched hostilities I called for the President to seek a declaration of war before taking military action. The Arab League resolution, which is cited as a key event in calculations on the war was passed a full week before we started launching cruise missiles. There was time to seek Congressional approval, and Congress would have debated a war resolution if the President had presented one.
This debate would not have been easy. But Presidents should not be able to avoid Constitutional responsibilities merely because engaging the people’s representatives is inconvenient or uncertain. If the outcome of a congressional vote on war is in doubt, it is all the more reason why a President should seek a debate. If he does not, he is taking the extraordinary position that his plans for war are too important to be upset by a disapproving vote in Congress.
The Founders believed that Presidents alone should not be trusted with war making authority, and they constructed checks against executive unilateralism. James Madison, in a 1797 letter to Thomas Jefferson stated, “The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the legislature.”
Clearly, there are circumstances under which a President might be justified in employing military force without Congressional authorization. But as Senator Webb has pointed out systematically, none of the reasons apply to the Libyan case. Our country was not attacked or threatened with an attack. We weren’t obligated under a treaty to defend the Libyan people. We were not rescuing Americans or launching a one-time punitive retaliation. Nor did the operation require surprise that would have made a public debate impractical.
In this case, President Obama made a deliberate decision not to seek a Congressional authorization of his action, either before it commenced or during the last three months. This was a fundamental failure of leadership that placed expedience above Constitutional responsibility.
Some will say that President Obama is not the first President to employ American forces overseas in controversial circumstances without a congressional authorization. But saying that Presidents have exceeded their Constitutional authority before is little comfort. Moreover, the highly dubious arguments offered by the Obama Administration for not needing congressional approval break new ground in justifying a unilateral Presidential decision to use force. The accrual of even more war making authority in the hands of the Executive is not in our country’s best interest, especially at a time when our nation is deeply in debt and our military is heavily committed overseas.
At the outset of the conflict, the President asserted that U.S. military operations in Libya would be “limited in their nature, duration, and scope.” On this basis, the Administration asserted that the actions did not require a declaration of war. Three months later, these assurances ring hollow. American and coalition military activities have expanded to an all but declared campaign to drive Qadhafi from power. The Administration is unable to specify any applicable limits to the duration of the operations. And the scope has grown from efforts to protect civilians under imminent threat to obliterating Libya’s military arsenal, command and control structure, and leadership apparatus.
Most recently, the Administration has sought to avoid its obligations under the War Powers Resolution by making the incredible assertion that U.S. military operations in Libya do not constitute hostilities. Even some prominent supporters of the war have refused to accept this claim.
The Administration’s own description of the operations in Libya underscores the fallacy of this position. U.S. warplanes have reportedly struck Libya air defenses some sixty times since NATO assumed the lead role in the Libya campaign. Predator drones reportedly have fired missiles on some 30 occasions. Most significantly, the broader range of airstrikes being carried out by other NATO forces depend on the essential support functions provided by the United States.
The War Powers Resolution required the President to terminate the introduction of U.S. forces into hostilities in Libya on May 20, sixty days after he notified Congress of the commencement of the operation. The Administration declined to offer any explanation of its view that U.S. forces were not engaged in hostilities in Libya until nearly a month later, on June 15. Even at that point, the Administration’s explanation was limited to four perfunctory sentences in a 32-page report on the Libya operations.
Administration analysis focuses on the question of whether U.S. casualties are likely to occur, thereby minimizing other considerations relevant to the use of force. If this definition of hostilities were accepted, Presidents would have significant scope to conduct warfare through remote means such as missiles and drones. It would deny Congress a say in other questions implicated in decisions to go to war, including the war’s impact on U.S. strategic interests, on our relations with other countries, and on our ability to meet competing national security priorities.
The Administration’s report also implies that because allied nations are flying most of the missions over Libya, the U.S. operations are not significant enough to require Congressional authorization. This characterization underplays the centrality of the U.S. contribution to the NATO operations in Libya. We are contributing 70 percent of the coalition’s intelligence capabilities and the majority of its refueling assets. The fact that we are leaving most of the shooting to other countries does not mean that the United States is not involved in acts of war. If the United States encountered persons performing similar activities in support of al Qaeda or Taliban operations, we certainly would deem them to be participating in hostilities against us. Moreover, the language of the War Powers Resolution clearly encompasses the kinds of operations U.S. military forces are performing in support of other NATO countries.
These concerns are compounded by indications that the Administration’s legal position was the result of a disputed decision process. According to press reports, the President made the decision to adopt this position without the Department of Justice having the opportunity to develop a unified legal opinion. It is regrettable that the Administration has refused our requests to make witnesses from the Departments of Defense and Justice available for today’s hearing.
Finally, one would expect the Administration to be fully forthcoming on consultations about Libya to compensate, in some measure, for the lack of Congressional authorization for the war. Although consultations in no way substitute for formal authorization – a view corroborated in the legal scholarship of Mr. Koh -- they serve a vital purpose in unifying the government and providing Congress with a basis for decision making on the war. For the most part, for example, the Clinton Administration and President Clinton, himself, consulted meaningfully with Congress during the U.S. intervention in the Balkans.
In sharp contrast, the Obama Administration’s efforts to consult with Congress have been perfunctory, incomplete, and dismissive of reasonable requests. This Committee alone has experienced at least three occasions when briefings were canceled or relevant witnesses were denied without explanation. As Senator Corker has pointed out, very basic questions about the operation have gone unanswered. Deputy Secretary of State Steinberg declined to address certain questions on the basis that they could only be answered by the military, and yet the Administration has refused to provide the Committee with Defense Department witnesses. This inexplicable behavior contributes to the damage that the Libya precedent might create in the future.
I do not doubt that President Obama elected to launch this war because of altruistic impulses. But that does not make the U.S. intervention in Libya any less of a war of election. Nor does the fig leaf that American pilots are flying a minority of the missions within the coalition justify the contention that we are not engaged in hostilities, especially since U.S. participation enables most of the operations underway.
The President does not have the authority to substitute his judgment for Constitutional process when there is no emergency that threatens the United States and our vital interests. The world is full of examples of local and regional violence, to which the U.S. military could be applied for some altruistic purpose. Under the Constitution, the Congress is vested with the authority to determine which, if any, of these circumstances justify the consequences of American military intervention. I thank the Chairman.