Thursday, June 16, 2011

Administration's Answers on Libya

The Obama administration yesterday released a 32-page report, United States Activities in Libya (link courtesy of Foreign Policy), detailing the government's operations in that country, the administration's legal authorization for those operations, and the administration's communications with Congress.  The report comes on the heels of a lawsuit by a bi-partisan group in the House and the White House's Letter from the President on the War Powers Resolution.

Here's what the administration had to say about its legal authority--"Legal Analysis and Administration Support for Bipartisan Resolution," on page 25 of the report:

Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actioins, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad.  The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision.  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.  U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.

This section goes on to reiterate the administration's strong support for the Senate resolution "that would confirm that both branches are united in their commitment to supporting the aspirations of the Libyan people for political reform and self-government."

House Speaker John Boehner told reporters this morning that the report "didn't answer the question in my letter as to whether the Office of Legal Counsel agrees" that the Libyan operations are consistent with the WPR and do not require further consultation. 

Speaker Boehner is right: the report didn't say what the OLC thought about this.  Instead, the OLC memo on Libyan operations concluded that the President had constitutional authority to direct the use of force in Libya to protect sufficiently weighty national interests and that the President did not have to obtain prior congressional approval under the Declaration of War Clause (that is, that the Libyan operation was not a "war").  For very similar reasons, the report yesterday concluded that the Libyan operation was not a "hostility" under the WPR.

The OLC memo emphasized that the WPR doesn't detract from the President's war powers, and that the President has powers outside those specifically listed in the WPR to deploy armed forces:

As demonstrated by U.S. military interventions in Somalia, Haiti, Bosnia, and Kosovo, among many other examples, "the President's power to deploy armed forces into situations of actual or indicated hostilities is not restricted to the three categories specifically marked out by the Resolution"--[(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by an attack on the U.S.].

Memo at 8, n. 1 (quoting Proposed Bosnia Deployment, 19 Op. O.L.C. at 335).  Thus the administration's position must be that the Libyan operation is neither a "war" (under the Declaration of War Clause) nor a "hostility" (under the WPR), for the same reasons, but that the President has constitutional authority to direct it. 

The administration's position on the WPR resolution may not be the clearest--and Speaker Boehner and others may reasonably disagree with it--but there it is.

SDS

http://lawprofessors.typepad.com/conlaw/2011/06/administrations-answers-on-libya.html

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Comments

Orwell is rolling and laughing in his grave.

Posted by: J. Alejandro AmorĂ³s | Jun 19, 2011 9:48:02 AM

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