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[Senate Hearing 112-89]
[From the U.S. Government Publishing Office]




                                                         S. Hrg. 112-89
 
                          LIBYA AND WAR POWERS

=======================================================================

                                HEARING

                               BEFORE THE


                     COMMITTEE ON FOREIGN RELATIONS

                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 28, 2011

                               __________

       Printed for the use of the Committee on Foreign Relations


      Available via the World Wide Web: http://www.gpo.gov/fdsys/





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                COMMITTEE ON FOREIGN RELATIONS         

             JOHN F. KERRY, Massachusetts, Chairman        
BARBARA BOXER, California            RICHARD G. LUGAR, Indiana
ROBERT MENENDEZ, New Jersey          BOB CORKER, Tennessee
BENJAMIN L. CARDIN, Maryland         JAMES E. RISCH, Idaho
ROBERT P. CASEY, Jr., Pennsylvania   MARCO RUBIO, Florida
JIM WEBB, Virginia                   JAMES M. INHOFE, Oklahoma
JEANNE SHAHEEN, New Hampshire        JIM DeMINT, South Carolina
CHRISTOPHER A. COONS, Delaware       JOHNNY ISAKSON, Georgia
RICHARD J. DURBIN, Illinois          JOHN BARRASSO, Wyoming
TOM UDALL, New Mexico                MIKE LEE, Utah
              Frank G. Lowenstein, Staff Director        
        Kenneth A. Myers, Jr., Republican Staff Director        

                              (ii)        



                            C O N T E N T S

                              ----------                              
                                                                   Page

Fisher, Louis, Scholar in Residence, The Constitution Project, 
  Silver Spring, MD..............................................    40
    Prepared statement...........................................    42
Kerry, Hon. John F., U.S. Senator from Massachusetts, opening 
  statement......................................................     1
Koh, Hon. Harold, Legal Adviser, U.S. Department of State, 
  Washington, DC.................................................     7
    Prepared statement...........................................    11
    Responses to questions submitted for the record by Senator 
      Richard G. Lugar...........................................    53
    Responses to questions submitted for the record by Senator 
      James E. Risch.............................................    58
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening 
  statement......................................................     4
Spiro, Peter, Charles R. Weiner Professor of Law, Temple 
  University, Easley School of Law, Philadelphia, PA.............    48
    Prepared statement...........................................    50

                                 (iii)



                         LIBYA AND WAR POWERS

                              ----------                              


                         TUESDAY, JUNE 28, 2011

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:07 a.m., in 
room SD-419, Dirksen Senate Office Building, Hon. John F. Kerry 
(chairman of the committee) presiding.
    Present: Senators Kerry, Casey, Webb, Shaheen, Coons, 
Lugar, Corker, Risch, Isakson, Barrasso, and Lee.

            OPENING STATEMENT OF HON. JOHN F. KERRY,
                U.S. SENATOR FROM MASSACHUSETTS

    The Chairman. The hearing will come to order.
    Thank you very much for being here this morning. I 
apologize for starting a few minutes late.
    We are here this morning to further examine an issue that 
we have been debating since the War Powers Resolution was 
passed. I think this is a debate of decades now since the 
1970s, and certainly it has been debated over the course of the 
last weeks with respect to the War Powers Resolution and its 
role in America's use of force in Libya.
    I want to thank all of my colleagues for the very 
constructive manner in which we have conducted that discussion 
over these past weeks, and this afternoon the committee will 
meet again--and I would ask all of the members who are here, as 
you run into other members, if we can begin that meeting 
punctually. I think there is a fair amount of business and it 
is obviously important business. We want to try to consider it 
as expeditiously as possible, and that is with respect to the 
proposed resolution regarding the limited operations in support 
of the NATO mission in Libya.
    It is my personal firm belief that America's values and 
interests compelled us to join other nations in establishing 
the no-fly zone over Libya. By keeping Qadhafi's most potent 
weapons out of the fight, I am positively convinced--and I 
would reiterate that 2 days ago Senator McCain and I were in 
Cairo meeting with General Tantawi and others, and they 
affirmed the conviction that the actions of the United Nations 
with respect to the no-fly zone, indeed, saved many thousands 
of people from being massacred by Qadhafi. There is no question 
in my mind about that.
    We also sent a message about something that matters to the 
American people as a matter of our values and that is about 
whether or not leaders should be permitted willy-nilly to turn 
their armies on their own citizens, the citizens they are 
supposed to serve and protect.
    I have made clear my belief that the 60-day restriction 
contained in the War Powers Resolution does not apply in this 
situation, particularly since we handed the operations over to 
NATO. But some people, obviously, can draw different 
interpretations and will. And we will have a good discussion 
about that today.
    It is important, in my judgment, to remember that the War 
Powers Resolution was a direct reaction to a particular kind of 
a war, to a particular set of events, the Vietnam war, which at 
that time was the longest conflict in our history and which 
resulted, without any declaration in war, in the loss of over 
58,000 American lives, spanning three administrations. And 
during those three administrations, Congress never declared war 
or, I might add, authorized it. They funded but there was no 
formal authorization.
    Now, understandably Congress after that wanted to ensure 
that in the future it would have an opportunity to assert its 
constitutional prerogatives, which I do agree with and do 
believe in when America sends its soldiers abroad.
    But our involvement in Libya is, obviously, clearly 
different from our fight in Vietnam. It is a very limited 
operation, and the War Powers Resolution applies to the use of 
armed forces in--and here I quote--``hostilities or situations 
where imminent involvement in hostilities is clearly indicated 
by the circumstances,'' referring to American Armed Forces.
    But for 40 years, Presidents have taken the view that this 
language does not include every single military operation. 
Presidents from both parties have undertaken military 
operations without express authorization from Congress. I will 
emphasize, particularly for my friends, that does not make it 
right, and I am not suggesting that it does. It still begs the 
analysis each time of whether or not it fits a particular 
situation. But certainly Panama, Grenada, Haiti, Bosnia, 
Kosovo, Lebanon--I mean, the list is long where Presidents have 
deemed it necessary to take a particular action. In some cases, 
those actions ended in less than 60 days, but in a number of 
them and some of the most recent and prominent ones, they went 
well beyond the 60 days. In fact, on one occasion, I believe 
Lebanon, Congress actually authorized action a year later.
    We have never amended the War Powers Resolution, and we 
have never amended the resolution in terms of this particular 
authorization that came through the United Nations.
    The Ford administration, for example, defined 
``hostilities'' only as those situations where U.S. troops were 
exchanging fire with hostile forces. And subsequent 
administrations, Republican and Democrat alike, built on that 
interpretation. But in Libya today no American is being shot 
at. No American troops are on the ground, and we are not going 
to put them there.
    It is true, of course, that the War Powers Resolution was 
not drafted with drones in mind. As our military technology 
becomes more and more advanced, it may well be that the 
language that I just read needs further clarification. Maybe it 
is up to us now to redefine it in the context of this more 
modern and changed warfare and threat.
    I certainly recognize that there can be very reasonable 
differences of opinion on this point as it applies to Libya 
today. So I am glad we are having this hearing. I think it is 
important.
    Many of us have met with members of the Libyan opposition, 
and I know Senators are eager to get to know them better and to 
learn about their plans and goals. I see this morning we are 
joined here by Ali Aujali. He was Libya's Ambassador to the 
United States but he resigned during the uprising and is now 
the diplomatic representative of the Transitional National 
Council which only recently Germany moved, Angela Merkel, moved 
to actually recognize.
    Like Ambassador Aujali, we would all like to see a brighter 
future for Libya, and that is why, when it comes to America's 
involvement, we need to look beyond the definition of 
hostilities to the bigger picture. A Senate resolution 
authorizing the limited use of force in Libya will, I think, 
show the world, in particular Muammar Qadhafi, at a time when 
most people make a judgment that the noose is tightening, the 
vice is squeezing, the opposition is advancing, the regime is 
under enormous pressure, that Congress and the President are 
committed to this critical endeavor. The United States is 
always strongest when we speak with one strong voice on foreign 
policy, and that is why I hope this afternoon we could find our 
way to an agreement on a bipartisan resolution.
    Endorsing our supporting role in this conflict, also sends 
a message to our allies and NATO. Secretary Gates, prior to 
departing in recent days, made a very strong speech about NATO, 
the need for NATO to do more. The fact is NATO is doing more in 
this effort, and they are in the lead on this effort. And we 
have asked in the past for the alliance to take the lead in 
many conflicts, and too often they have declined. In this case, 
they have stepped up, and I believe that for us to, all of a 
sudden, turn on our own words and hopes and urgings of the last 
years and pull the rug out from under them would have far-
reaching consequences.
    With that said, it is a great pleasure for me to welcome 
here Harold Koh, the State Department's Legal Adviser. He is an 
extremely distinguished scholar of constitutional law and 
international law. He has a long career of service in the 
Government, as well as in academia.
    We had also, I might add, invited some witnesses from the 
Pentagon and the Department of Justice to testify this morning, 
but they declined to appear.
    On the second panel, we have two witnesses. Louis Fisher is 
Scholar in Residence at The Constitution Project, and he 
previously worked for 4 decades at the Library of Congress as 
the senior specialist in separation of powers and as a 
specialist in constitutional law. And Professor Spiro is the 
Charles R. Weiner Professor of Law at Temple University, and he 
has served in the State Department and on the National Security 
Council staff and has written extensively on foreign relations 
law of the United States.
    So we appreciate all of our witnesses taking time to be 
here today.
    Senator Lugar.

          OPENING STATEMENT OF HON. RICHARD G. LUGAR,
                   U.S. SENATOR FROM INDIANA

    Senator Lugar. Well, thank you very much, Mr. Chairman, for 
calling this meeting to consider the legal and constitutional 
basis for ongoing United States military operations in Libya. 
The President declined to seek congressional authorization 
before initiating hostilities. Subsequently he has carried them 
out for more than 3 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 the President somehow had the legal 
authority to initiate and continue United States 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 
U.N. 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 warmaking 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 were not 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 3 months. This was a 
fundamental failure of leadership that placed expedience above 
constitutional responsibility.
    Now, 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 warmaking 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 this 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. United States 
war planes have reportedly struck Libya air defenses some 60 
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, 60 days after he notified Congress of the 
commencement of the operation. The administration declined to 
offer any explanation of its view that United States 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 Libyan 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 
United States operations are not significant enough to require 
congressional authorization. This characterization underplays 
the centrality of the United States contributions 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 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 this legal scholarship 
today of Mr. Koh, they serve a vital purpose in unifying the 
Government and providing Congress with a basis for 
decisionmaking on the war. For the most part, for example, the 
Clinton administration and President Clinton himself consulted 
meaningfully with Congress during the United States 
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 
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 
United States 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 we are not engaged in hostilities, especially since 
United States 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 United States 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 for the opportunity to make this 
statement.
    The Chairman. Thank you very much.
    So there, legal counsel, there you have it, sir. The stage 
is set, two differing views reflecting over 50 years of service 
on this committee, and we are still not sure what the answer 
is. So your task this morning is an interesting one, and I 
think we will not only have a good dialogue, but maybe it will 
be fun. Have at it. You are on.

STATEMENT OF HON. HAROLD KOH, LEGAL ADVISER, U.S. DEPARTMENT OF 
                     STATE, WASHINGTON, DC

    Mr. Koh. Thank you, Mr. Chairman, Senator Lugar, members of 
the committee, for this important hearing. It is good to be 
back before you. Like past legal advisers, I am honored to 
appear to explain the administration's legal position on the 
war powers. I have submitted detailed testimony, which you have 
before you, which reviews the brutality visited by Qadhafi on 
the people of Libya and the urgent but restrained steps this 
administration has taken to stop it as part of a supporting 
role within a NATO-led, Security Council-authorized civilian 
protection mission that is limited with respect to design, 
exposure of U.S. troops, risk of escalation, and choice of 
military means.
    Today let me make three points.
    First, this administration is acting lawfully, consistent 
with both the letter and spirit of the Constitution and the War 
Powers Resolution. Contrary to what some have claimed, we are 
not asserting sweeping constitutional power to bypass Congress. 
The President has never claimed the authority to take the 
Nation to war without congressional authorization. He has never 
claimed authority to violate the War Powers Resolution or any 
other statute. He has not claimed the right to violate 
international law to use force abroad when doing so would not 
serve important national interests or to refuse to consult with 
Congress on important war powers issues.
    We recognize that Congress has powers to regulate and 
terminate uses of force and that the War Powers Resolution 
plays an important role in promoting interbranch dialogue. 
Indeed, my testimony today continues that dialogue which now 
includes more than 10 hearings, 30 briefings, and dozens of 
exchanges with Congress on these issues.
    From the start, we have sought to obey the law. I would not 
serve an administration that did not. The President reported to 
Congress, consistent with the War Powers Resolution, within 48 
hours of commencing operations in Libya. He framed our military 
mission narrowly, directing among other things, that no ground 
troops would be deployed and that on April 4, U.S. forces would 
transition responsibility to NATO command, shifting to a 
constrained and supporting role within a multinational civilian 
protection mission.
    And from the outset, we noted that the situation in Libya 
does not constitute a war requiring specific congressional 
approval under the Declaration of War Clause of the 
Constitution. As my testimony notes on page 13, the President 
has constitutional authority, long recognized, to direct the 
use of force to serve important national interests and 
preserving regional stability and supporting the credibility 
and effectiveness of the U.N. Security Council. The nature, 
scope, and duration of the military operations he ordered here 
did not rise to the level of war for constitutional purposes.
    So my second point. We do not believe that the War Powers 
Resolution's 60-day automatic pullout provision applies to the 
limited Libya mission. As Senator Kerry quoted, absent express 
congressional authorization, the resolution directs the 
President to remove U.S. Armed Forces within 60 days from the 
date that hostilities or situations where imminent involvement 
in hostilities is clearly indicated.
    But as everyone recognizes, the legal trigger for the 
automatic pullout clock, ``hostilities'' is an ambiguous term 
of art that is defined nowhere in the statute. The legislative 
history, which we cite, makes clear there was no agreed-upon 
view of exactly what the term ``hostilities'' would encompass, 
nor has that standard ever been defined by any court or by 
Congress itself.
    From the start, legislators disagreed about the meaning of 
the term and the scope of the 60-day pullout rule and whether a 
particular set of facts constitutes hostilities for purposes of 
the resolution has been determined less by a narrow parsing of 
dictionary definitions than by interbranch practice.
    The Members of Congress who drafted the War Powers 
Resolution understood that this resolution is not like the 
Internal Revenue Code. Reading the War Powers Resolution should 
not be a mechanical exercise. The term ``hostilities'' was 
vague but they declined to give it more concrete meaning in 
part to avoid hampering future Presidents by making the 
resolution a one-size-fits-all straitjacket that would operate 
mechanically without regard to the facts.
    As my testimony recounts and as Senator Kerry has himself 
noted, there are various leaders of this Congress who have 
indicated that they do not believe that the United States 
military operations in Libya amount to the kind of hostilities 
envisioned by the 60-day pullout provision. We believe that 
view is correct and confirmed by historical practice. And the 
historical practice, which I summarize in my testimony, 
suggests that when U.S. forces engage in a limited military 
mission that involves limited exposure for U.S. troops and 
limited risk of serious escalation and employs limited military 
means, we are not in hostilities of the kind envisioned by the 
War Powers Resolution that was intended to trigger an automatic 
60-day pullout.
    Let me say just a word about each of these four 
limitations.
    First, the nature of the mission is unusually limited. By 
Presidential design, U.S. forces are playing a constrained and 
supporting role in a NATO-led, multinational civilian 
protection mission charged with enforcing a Security Council 
resolution. This circumstance is virtually unique, not found in 
any of the recent historic situations in which the hostilities 
questions has been debated from the Iranian hostages crisis to 
El Salvador, to Lebanon, to Grenada, to the fighting with Iran 
in the Persian Gulf, or to the use of ground troops in Somalia.
    Second, the exposure of our Armed Forces is limited. From 
the transition date of March 31 forward, there have been no 
U.S. casualties, no threat of significant U.S. casualties, no 
active exchanges of fire with hostile forces, no significant 
armed confrontation or sustained confrontation of any kind with 
hostile forces. And as my testimony describes on page 9, past 
administrations have not found the 60-day rule to apply even in 
a situation where far more significant fighting plainly did 
occur such as in Lebanon and Grenada in 1983 and Somalia in 
1993.
    Third, the risk of escalation here is limited. In contrast 
to the U.N.-authorized Desert Storm operation, which presented 
over 400,000 troops, the same order of magnitude as Vietnam at 
its peak, Libya has not involved any significant chance of 
escalation into a full-fledged conflict characterized by a 
large U.S. ground presence, major casualties, sustained active 
combat, or an expanding geographic scope. In this respect, 
Libya contrasts with other recent cases, Lebanon, Central 
America, Somalia, the Persian Gulf tanker controversy, 
discussed on page 10 of my testimony, where past 
administrations declined to find hostilities under the War 
Powers Resolution, even though United States Armed Forces were 
repeatedly engaged by other sides' forces and sustained 
significant casualties.
    And fourth and finally, Senators, we are using limited 
military means, not the kind of full military engagements with 
which the War Powers Resolution is primarily concerned. And 
there I quote from a statement by my predecessor, the legal 
adviser of 1975, in response to a request from the Congress 
about an incident during the Ford administration. The violence 
U.S. Armed Forces are directly inflicting or facilitating after 
the handoff to NATO has been modest in terms of its frequency, 
intensity, and severity. The air-to-ground strikes conducted by 
the United States are a far cry from the extensive aerial 
strike operations led by United States Armed Forces in Kosovo 
in 1999 or the NATO operations in the Balkans in the 1990s, to 
which the United States forces contributed the vast majority of 
aircraft and airstrike sorties.
    To be specific, the bulk of U.S. contributions has been 
providing intelligence capabilities and refueling assets to the 
NATO effort. A very significant majority of the overall 
sorties, 75 percent, are being flown by our coalition partners. 
The overwhelming majority of strike sorties, 90 percent, are 
being flown by our partners. American strikes have been limited 
on an as-needed basis to the suppression of enemy air defenses 
to enforce the no-fly zone and limited strikes by Predator 
unmanned aerial vehicles against discrete targets to support 
the civilian protection mission. By our best estimate, 
Senators, since the handoff to NATO, the total number of United 
States munitions dropped in Libya has been less than 1 percent 
of those dropped in Kosovo.
    Now, we acknowledge that had any of these elements been 
absent in Libya or present in different degrees, you could draw 
a different legal conclusion, but it was this unusual 
confluence of these four limitations, an operation that is 
limited in mission, limited in exposure, limited in risk of 
escalation, and limited in choice of military means, that led 
the President to conclude that the Libya operation did not fall 
under the automatic 60-day pullout rule.
    As Chairman Kerry suggested, we are far from the core case 
that most Members of Congress had in mind when they passed the 
resolution in 1973. They were concerned there about no more 
Vietnams. But given the limited military means, risk of 
escalation, exchanges of fire, and United States casualties, we 
do not believe that the 1973 Congress intended that its 
resolution should be construed so rigidly to stop the President 
from directing supporting action in a NATO-led, Security 
Council-authorized operation with international approval at the 
express request of NATO, the Arab League, the Gulf Cooperation 
Council, and Libya's own Transitional National Council for the 
narrow but urgent purpose of preventing the slaughter of 
innocent civilians in Libya.
    Third and finally, Senators, we fully recognize reasonable 
minds may read the resolution differently. That would not be a 
surprise. They have since their inception. Scholars have spent 
their entire careers debating these issues. These questions of 
interpretation are matters of important public debate. 
Reasonable minds can certainly differ. And we acknowledge that 
there were perhaps steps we should have taken or could have 
taken to foster better communication on these very difficult 
legal questions.
    But none of us believes that the best way forward now is 
for Qadhafi to prevail and to resume his attacks on his own 
people. Were the United States now to drop out of this 
collective civilian protection mission or to sharply curtail 
its contributions would not only compromise our international 
relationships and destabilize the region but would undo NATO's 
progress by permitting Qadhafi to return to brutal attacks on 
the very civilians whom our intervention has protected. However 
we may construe the War Powers Resolution, we can all agree it 
would only serve Qadhafi's interests for the United States to 
withdraw from this NATO operation before it is finished.
    And so the urgent question before you is not one of law but 
of policy. Will Congress provide its support for NATO's mission 
in Libya at this pivotal juncture, ensuring that Qadhafi does 
not regain the upper hand against the people of Libya?
    And so in closing, I ask that you take quick and decisive 
action to approve Senate Joint Resolution 20, the bipartisan 
resolution introduced by Senators Kerry, McCain, Durbin, 
Cardin, and seven others of your colleagues to provide 
congressional authorization for continued operations in Libya 
to enforce the purposes of Security Council Resolution 1973. 
Only by so doing can this body affirm that the United States 
Government is united in its support of the NATO alliance and 
the aspirations of the Libyan people.
    Thank you, Senator, and I look forward to answering your 
questions.
    [The prepared statement of Mr. Koh follows:]

                Prepared Statement of Harold Hongju Koh

    Thank you, Mr. Chairman, Ranking Member Lugar, and members of the 
committee, for this opportunity to testify before you on Libya and war 
powers. By so doing, I continue nearly four decades of dialogue between 
Congress and Legal Advisers of the State Department, since the War 
Powers Resolution was enacted, regarding the executive branch's legal 
position on war powers.\1\
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    \1\ In 1975, shortly after the enactment of the War Powers 
Resolution, Legal Adviser Monroe Leigh testified before Congress, and 
then responded to written questions, regarding the meaning and 
application of the resolution. See Letter from State Department Legal 
Adviser Monroe Leigh and Department of Defense General Counsel Martin 
R. Hoffmann to Chairman Clement J. Zablocki (June 5, 1975), reprinted 
in ``War Powers: A Test of Compliance Relative to the Danang Sealift, 
the Evacuation at Phnom Penh, the Evacuation of Saigon, and the 
Mayaguez Incident'': Hearings Before the Subcommittee on International 
Security and Scientific Affairs of the House Committee on International 
Relations, 94th Cong. (1975) [hereinafter ``1975 Leigh-Hoffmann 
Letter'']. Subsequent Legal Advisers have carried on this tradition. 
See, e.g., ``War Powers Resolution'': Hearings Before the Senate 
Committee on Foreign Relations, 95th Cong. (1977) (testimony of Legal 
Adviser Herbert J. Hansell); ``War Powers, Libya, and State-Sponsored 
Terrorism'': Hearings Before the Subcommittee on Arms Control, Int'l 
Security and Science of the House Committee on Foreign Affairs, 99th 
Cong. (1986) (testimony of Legal Adviser Abraham D. Sofaer); ``H. Con. 
Res. 82, Directing the President to Remove Armed Forces From Operations 
Against Yugoslavia, and H.J. Res. 44, Declaring War Between the United 
States and Yugoslavia'': Markup Before the House Committee on Int'l 
Relations, 106th Cong. (1999) (testimony of Principal Deputy Legal 
Adviser Michael J. Matheson). Cf. Legal Adviser Harold Hongju Koh, 
Statement Regarding the Use of Force in Libya, American Society of 
International Law Annual Meeting (Mar. 26, 2011) (discussing ``the 
historical practice of the Legal Adviser publicly explaining the legal 
basis for United States military actions that might occur in the 
international realm'').
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    We believe that the President is acting lawfully in Libya, 
consistent with both the Constitution and the War Powers Resolution, as 
well as with international law.\2\ Our position is carefully limited to 
the facts of the present operation, supported by history, and 
respectful of both the letter of the resolution and the spirit of 
consultation and collaboration that underlies it. We recognize that our 
approach has been a matter of important public debate, and that 
reasonable minds can disagree. But surely none of us believes that the 
best result is for Qadhafi to wait NATO out, leaving the Libyan people 
again exposed to his brutality. Given that, we ask that you swiftly 
approve Senate Joint Resolution 20, the bipartisan measure recently 
introduced by 11 Senators, including 3 members of this committee.\3\ 
The best way to show a united front to Qadhafi, our NATO allies, and 
the Libyan people is for Congress now to authorize under that joint 
resolution continued, constrained operations in Libya to enforce United 
Nations Security Council Resolution 1973.
---------------------------------------------------------------------------
    \2\ For explanation of the lawfulness of our Libya actions under 
international law, see Koh, supra note 1.
    \3\ S.J. Res. 20 (introduced by Senators Kerry, McCain, Levin, Kyl, 
Durbin, Feinstein, Graham, Lieberman, Blunt, Cardin, and Kirk).
---------------------------------------------------------------------------
    As Secretary Clinton testified in March, the United States 
engagement in Libya followed the administration's strategy of ``using 
the combined assets of diplomacy, development, and defense to protect 
our interests and advance our values.'' \4\ Faced with brutal attacks 
and explicit threats of further imminent attacks by Muammar Qadhafi 
against his own people,\5\ the United States and its international 
partners acted with unprecedented speed to secure a mandate, under 
Resolution 1973, to mobilize a broad coalition to protect civilians 
against attack by an advancing army and to establish a no-fly zone. In 
so doing, President Obama helped prevent an imminent massacre in 
Benghazi, protected critical U.S. interests in the region, and sent a 
strong message to the people not just of Libya--but of the entire 
Middle East and North Africa--that America stands with them at this 
historic moment of transition.
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    \4\ Hearing on FY 2012 State Department Budget Before the 
Subcommittee on State, Foreign Operations, and Related Programs of the 
Senate Committee on Appropriations, 112th Cong. (Mar. 2, 2011).
    \5\ Qadhafi's actions demonstrate his ongoing intent to suppress 
the democratic movement against him by lawlessly attacking Libyan 
civilians. On February 22, 2011, Qadhafi pledged on Libyan National 
Television to lead ``millions to purge Libya inch by inch, house by 
house, household by household, alley by alley, and individual by 
individual until I purify this land.'' He called his opponents 
``rats,'' and said they would be executed. On March 17, 2011, in 
another televised address, Qadhafi promised, ``We will come house by 
house, room by room. . . . We will find you in your closets. And we 
will have no mercy and no pity.'' Qadhafi's widespread and systematic 
attacks against the civilian population led the United Nations Security 
Council, in Resolution 1970, to refer the situation in Libya to the 
Prosecutor of the International Criminal Court. The U.N. Human Rights 
Council's Commission of Inquiry into Libya subsequently concluded that 
since February, ``[human rights] violations and crimes have been 
committed in large part by the Government of Libya in accordance with 
the command and control system established by Colonel Qadhafi through 
the different military, para-military, security and popular forces that 
he has employed in pursuit of a systematic and widespread policy of 
repression against opponents of his regime and of his leadership.'' At 
this moment, Qadhafi's forces continue to fire indiscriminately at 
residential areas with shells and rockets. Defecting Qadhafi forces 
have recounted orders ``to show no mercy'' to prisoners, and some 
recent reports indicate that the Qadhafi regime has been using rape as 
a tool of war. See Secretary of State Hillary Rodham Clinton, Press 
Statement, Sexual Violence in Libya, the Middle East and North Africa 
(June 16, 2011), http://www.state.gov/secretary/rm/2011/06/166369.htm. 
For all of these reasons, President Obama declared on March 26, 
``[W]hen someone like Qadhafi threatens a bloodbath that could 
destabilize an entire region; and when the international community is 
prepared to come together to save thousands of lives--then it's in our 
national interest to act. And, it's our responsibility. This is one of 
those times.''
---------------------------------------------------------------------------
    From the start, the administration made clear its commitment to 
acting consistently with both the Constitution and the War Powers 
Resolution. The President submitted a report to Congress, consistent 
with the War Powers Resolution, within 48 hours of the commencement of 
operations in Libya. He framed our military mission narrowly, 
directing, among other things, that no ground troops would be deployed 
(except for necessary personnel recovery missions), and that U.S. Armed 
Forces would transition responsibility for leading and conducting the 
mission to an integrated NATO command. On April 4, 2011, U.S. forces 
did just that, shifting to a constrained and supporting role in a 
multinational civilian protection mission--in an action involving no 
U.S. ground presence or, to this point, U.S. casualties--authorized by 
a carefully tailored U.N. Security Council Resolution. As the War 
Powers Resolution contemplates, the administration has consulted 
extensively with Congress about these operations, participating in more 
than 10 hearings, 30 briefings, and dozens of additional exchanges 
since March 1--an interbranch dialogue that my testimony today 
continues.
    This background underscores the limits to our legal claims. 
Throughout the Libya episode, the President has never claimed the 
authority to take the Nation to war without congressional 
authorization, to violate the War Powers Resolution or any other 
statute, to violate international law, to use force abroad when doing 
so would not serve important national interests, or to refuse to 
consult with Congress on important war powers issues. The 
administration recognizes that Congress has powers to regulate and 
terminate uses of force, and that the War Powers Resolution plays an 
important role in promoting interbranch dialogue and deliberation on 
these critical matters. The President has expressed his strong desire 
for congressional support, and we have been working actively with 
Congress to ensure enactment of appropriate legislation.
    Together with our NATO and Arab partners, we have made great 
progress in protecting Libya's civilian population, and we have 
isolated Qadhafi and set the stage for his departure. Although since 
early April we have confined our military involvement in Libya to a 
supporting role, the limited military assistance that we provide has 
been critical to the success of the mission, as has our political and 
diplomatic leadership. If the United States were to drop out of, or 
curtail its contributions to, this mission, it could not only 
compromise our international relationships and alliances and threaten 
regional instability, but also permit an emboldened and vengeful 
Qadhafi to return to attacking the very civilians whom our intervention 
has protected.
    Where, against this background, does the War Powers Resolution fit 
in? The legal debate has focused on the resolution's 60-day clock, 
which directs the President--absent express congressional authorization 
(or the applicability of other limited exceptions) and following an 
initial 48-hour reporting period--to remove United States Armed Forces 
within 60 days from ``hostilities'' or ``situations where imminent 
involvement in hostilities is clearly indicated by the circumstances.'' 
But as virtually every lawyer recognizes, the operative term, 
``hostilities,'' is an ambiguous standard, which is nowhere defined in 
the statute. Nor has this standard ever been defined by the courts or 
by Congress in any subsequent war powers legislation. Indeed, the 
legislative history of the resolution makes clear there was no fixed 
view on exactly what the term ``hostilities'' would encompass.\6\ 
Members of Congress understood that the term was vague, but 
specifically declined to give it more concrete meaning, in part to 
avoid unduly hampering future Presidents by making the resolution a 
``one size fits all'' straitjacket that would operate mechanically, 
without regard to particular circumstances.
---------------------------------------------------------------------------
    \6\ When the resolution was first considered, one of its principal 
sponsors, Senator Jacob K. Javits, stated that ``[t]he bill . . . seeks 
to proceed in the kind of language which accepts a whole body of 
experience and precedent without endeavoring specifically to define 
it.'' ``War Powers Legislation'': Hearings on S. 731, S.J. Res. 18, and 
S.J. Res. 59 Before the Committee on Foreign Relations, 92d Cong. 28 
(1971); see also id. (statement of Professor Henry Steele Commager) 
(agreeing with Senator Javits that ``there is peril in trying to be too 
exact in definitions,'' as ``[s]omething must be left to the judgment, 
the intelligence, the wisdom, of those in command of the Congress, and 
of the President as well''). Asked at a House of Representatives 
hearing whether the term ``hostilities'' was problematic because of 
``the susceptibility of it to different interpretations,'' making this 
``a very fuzzy area,'' Senator Javits acknowledged the vagueness of the 
term but suggested that it was a necessary feature of the legislation: 
``There is no question about that, but that decision would be for the 
President to make. No one is trying to denude the President of 
authority.'' ``War Powers'': Hearings Before the Subcommittee on 
National Security Policy and Scientific Developments of the House 
Committee on Foreign Affairs, 93d Cong. 22 (1973). We recognize that 
the House report suggested that ``[t]he word hostilities was 
substituted for the phrase armed conflict during the subcommittee 
drafting process because it was considered to be somewhat broader in 
scope,'' but the report provided no clear direction on what either term 
was understood to mean. H.R. Rept. No. 93-287, at 7 (1973); see also 
Lowry v. Reagan, 676 F. Supp. 333, 340 n.53 (1997) (finding that 
``fixed legal standards were deliberately omitted from this statutory 
scheme,'' as ``the very absence of a definitional section in the [War 
Powers] resolution [was] coupled with debate suggesting that 
determinations of `hostilities' were intended to be political decisions 
made by the President and Congress'').
---------------------------------------------------------------------------
    From the start, lawyers and legislators have disagreed about the 
meaning of this term and the scope of the resolution's 60-day pullout 
rule. Application of these provisions often generates difficult issues 
of interpretation that must be addressed in light of a long history of 
military actions abroad, without guidance from the courts, involving a 
resolution passed by a Congress that could not have envisioned many of 
the operations in which the United States has since become engaged. 
Because the War Powers Resolution represented a broad compromise 
between competing views on the proper division of constitutional 
authorities, the question whether a particular set of facts constitutes 
``hostilities'' for purposes of the resolution has been determined more 
by interbranch practice than by a narrow parsing of dictionary 
definitions. Both branches have recognized that different situations 
may call for different responses, and that an overly mechanical reading 
of the statute could lead to unintended automatic cutoffs of military 
involvement in cases where more flexibility is required.
    In the nearly 40 years since the resolution's enactment, successive 
administrations have thus started from the premise that the term 
``hostilities'' is ``definable in a meaningful way only in the context 
of an actual set of facts.'' \7\ And successive Congresses and 
Presidents have opted for a process through which the political 
branches have worked together to flesh out the law's meaning over time. 
By adopting this approach, the two branches have sought to avoid 
construing the statute mechanically, divorced from the realities that 
face them.
---------------------------------------------------------------------------
    \7\ 1975 Leigh-Hoffmann Letter, supra note 1, at 38.
---------------------------------------------------------------------------
    In this case, leaders of the current Congress have stressed this 
very concern in indicating that they do not believe that U.S. military 
operations in Libya amount to the kind of ``hostilities'' envisioned by 
the War Powers Resolution's 60-day pullout provision.\8\ The historical 
practice supports this view. In 1975, Congress expressly invited the 
executive branch to provide its best understanding of the term 
``hostilities.'' My predecessor Monroe Leigh and Defense Department 
General Counsel Martin Hoffmann responded that, as a general matter, 
the executive branch understands the term ``to mean a situation in 
which units of the U.S. Armed Forces are actively engaged in exchanges 
of fire with opposing units of hostile forces.'' \9\ On the other hand, 
as Leigh and Hoffmann suggested, the term should not necessarily be 
read to include situations where the nature of the mission is limited 
(i.e., situations that do not ``involve the full military engagements 
with which the resolution is primarily concerned'' \10\); where the 
exposure of U.S. forces is limited (e.g., situations involving 
``sporadic military or paramilitary attacks on our Armed Forces 
stationed abroad,'' in which the overall threat faced by our military 
is low \11\); and where the risk of escalation is therefore limited. 
Subsequently, the executive branch has reiterated the distinction 
between full military encounters and more constrained operations, 
stating that ``intermittent military engagements'' do not require 
withdrawal of forces under the resolution's 60-day rule.\12\ In the 36 
years since Leigh and Hoffmann provided their analysis, the executive 
branch has repeatedly articulated and applied these foundational 
understandings. The President was thus operating within this 
longstanding tradition of executive branch interpretation when he 
relied on these understandings in his legal explanation to Congress on 
June 15, 2011
---------------------------------------------------------------------------
    \8\ Both before and after May 20, 2011, the 60th day following the 
President's initial letter to Congress on operations in Libya, few 
Members of Congress asserted that our participation in the NATO mission 
would trigger or had triggered the War Powers Resolution's pullout 
provision. House Speaker Boehner stated on June 1, 2011, that 
``[1]egally, [the Administration has] met the requirements of the War 
Powers Act.'' House Minority Leader Pelosi stated on June 16, 2011, 
that ``[t]he limited nature of this engagement allows the President to 
go forward,'' as ``the President has the authority he needs.'' Senate 
Majority Leader Reid stated on June 17, 2011, that ``[t]he War Powers 
Act has no application to what's going on in Libya.'' Senate Foreign 
Relations Committee Chairman Kerry stated on June 21, 2011, that ``I do 
not think our limited involvement rises to the level of hostilities 
defined by the War Powers Resolution,'' and on June 23, 2011, that 
``[w]e have not introduced our armed forces into hostilities. No 
American is being shot at. No American troop is at risk of being shot 
down today. That is not what we're doing. We are refueling. We are 
supporting NATO.'' Since May 20, the basic facts regarding the limited 
nature of our mission in Libya have not materially changed.
    \9\ 1975 Leigh-Hoffmann Letter, supra note 1, at 38-39.
    \10\ The quoted language comes from the Department of Justice, 
which in 1980 reaffirmed the Leigh-Hoffmann analysis. ``Presidential 
Power to Use the Armed Forces Abroad Without Statutory Authorization,'' 
4A Op. O.L.C. 185, 194 (1980).
    \11\ Id.; see also Letter from Assistant Secretary of State J. 
Edward Fox to Chairman Dante B. Fascell (Mar. 30, 1988) (stating that 
``hostilities'' determination must be ``based on all the facts and 
circumstances as they would relate to the threat to U.S. forces at the 
time'' (emphasis added)).
    \12\ Letter from Assistant Secretary of State for Legislative 
Affairs Wendy R. Sherman to Representative Benjamin Gilman, reprinted 
in 139 Cong. Rec. H7095 (daily ed. Sept. 28, 1993).
---------------------------------------------------------------------------
    In light of this historical practice, a combination of four factors 
present in Libya suggests that the current situation does not 
constitute the kind of ``hostilities'' envisioned by the War Powers 
Resolution's 60-day automatic pullout provision.
    First, the mission is limited: By Presidential design, U.S. forces 
are playing a constrained and supporting role in a NATO-led 
multinational civilian protection operation, which is implementing a 
U.N. Security Council resolution tailored to that limited purpose. This 
is a very unusual set of circumstances, not found in any of the 
historic situations in which the ``hostilities'' question was 
previously debated, from the deployment of U.S. Armed Forces to 
Lebanon, Grenada, and El Salvador in the early 1980s, to the fighting 
with Iran in the Persian Gulf in the late 1980s, to the use of ground 
troops in Somalia in 1993. Of course, NATO forces as a whole are more 
deeply engaged in Libya than are U.S. forces, but the War Powers 
Resolution's 60-day pullout provision was designed to address the 
activities of the latter.\13\
---------------------------------------------------------------------------
    \13\ A definitional section of the War Powers Resolution, 8(c), 
gives rise to a duty of congressional notification, but not 
termination, upon the ``assignment'' of U.S. forces to command, 
coordinate, participate in the movement of, or accompany foreign forces 
that are themselves in hostilities. Section 8(c) is textually linked 
(through the term ``introduction of United States Armed Forces'') not 
to the ``hostilities'' language in section 4 that triggers the 
automatic pullout provision in section 5(b), but rather, to a different 
clause later down in that section that triggers a reporting 
requirement. According to the Senate report, the purpose of section 
8(c) was ``to prevent secret, unauthorized military support activities 
[such as the secret assignment of U.S. military `advisers' to South 
Vietnam and Laos] and to prevent a repetition of many of the most 
controversial and regrettable actions in Indochina,'' S. Rept. No. 93-
220, at 24 (1973) actions that scarcely resemble NATO operations such 
as this one. Indeed, absurd results could ensue if section 8(c) were 
read to trigger the 60-day clock, as that could require termination of 
the ``assignment'' of even a single member of the U.S. military to 
assist a foreign government force, unless Congress passed legislation 
to authorize that one-person assignment. Moreover, section 8(c) must be 
read together with the immediately preceding section of the resolution, 
8(b). By grandfathering in preexisting ``high-level military 
commands,'' section 8(b) not only shows that Congress knew how to 
reference NATO operations when it wanted to, but also suggests that 
Congress recognized that NATO operations are generally less likely to 
raise the kinds of policy concerns that animated the resolution. If 
anything, the international framework of cooperation within which this 
military mission is taking place creates a far greater risk that by 
withdrawing prematurely from Libya, as opposed to staying the course, 
we would generate the very foreign policy problems that the War Powers 
Resolution was meant to counteract: for example, international 
condemnation and strained relationships with key allies.
---------------------------------------------------------------------------
    Second, the exposure of our Armed Forces is limited: To date, our 
operations have not involved U.S. casualties or a threat of significant 
U.S. casualties. Nor do our current operations involve active exchanges 
of fire with hostile forces, and members of our military have not been 
involved in significant armed confrontations or sustained 
confrontations of any kind with hostile forces.\14\ Prior 
administrations have not found the 60-day rule to apply even in 
situations where significant fighting plainly did occur, as in Lebanon 
and Grenada in 1983 and Somalia in 1993.\15\ By highlighting this 
point, we in no way advocate a legal theory that is indifferent to the 
loss of non-American lives. But here, there can be little doubt that 
the greatest threat to Libyan civilians comes not from NATO or the 
United States military, but from Qadhafi. The Congress that adopted the 
War Powers Resolution was principally concerned with the safety of U.S. 
forces,\16\ and with the risk that the President would entangle them in 
an overseas conflict from which they could not readily be extricated. 
In this instance, the absence of U.S. ground troops, among other 
features of the Libya operation, significantly reduces both the risk to 
U.S. forces and the likelihood of a protracted entanglement that 
Congress may find itself practically powerless to end.\17\
---------------------------------------------------------------------------
    \14\ The fact that the Defense Department has decided to provide 
extra ``danger pay'' to those U.S. service members who fly planes over 
Libya or serve on ships within 110 nautical miles of Libya's shores 
does not mean that those service members are in ``hostilities'' for 
purposes of the War Powers Resolution. Similar danger pay is given to 
U.S. forces in Burundi, Greece, Haiti, Indonesia, Jordan, Montenegro, 
Saudi Arabia, Turkey, and dozens of other countries in which no one is 
seriously contending that ``hostilities'' are occurring under the War 
Powers Resolution.
    \15\ In Lebanon, the Reagan administration argued that U.S. Armed 
Forces were not in ``hostilities,'' though there were roughly 1,600 
U.S. marines equipped for combat on a daily basis and roughly 2,000 
more on ships and bases nearby; U.S. marine positions were attacked 
repeatedly; and four marines were killed and several dozen wounded in 
those attacks. See Richard F. Grimmett, Congressional Research Service, 
``The War Powers Resolution: After Thirty Six Years'' 13-15 (Apr. 22, 
2010); John H. Kelly, Lebanon: 1982-1984, in ``U.S. and Russian 
Policymaking With Respect to the Use of Force'' 85, 96-99 (Jeremy R. 
Azrael & Emily A. Payin eds., 1996). In Grenada, the administration did 
not acknowledge that ``hostilities'' had begun under the War Powers 
Resolution after 1,900 members of the U.S. Armed Forces had landed on 
the island, leading to combat that claimed the lives of nearly 20 
Americans and wounded nearly 100 more. See Grimmett, supra, at 15; Ben 
Bradlee, Jr., ``A Chronology on Grenada,'' Boston Globe, Nov. 6, 1983. 
In Somalia, 25,000 troops were initially dispatched by the President, 
without congressional authorization and without reference to the War 
Powers Resolution, as part of Operation Restore Hope. See Grimmett, 
supra, at 27. By May 1993, several thousand U.S. forces remained in the 
country or on ships offshore, including a Quick Reaction Force of some 
1,300 marines. During the summer and into the fall of that year, ground 
combat led to the deaths of more than two dozen U.S. soldiers. John L. 
Hirsch & Robert B. Oakley, ``Somalia and Operation Restore Hope: 
Reflections on Peacemaking and Peacekeeping'' 112, 124-27 (1995).
    \16\ The text of the statute supports this widely held 
understanding, by linking the pullout provision to the ``introduction'' 
of United States Armed Forces ``into hostilities,'' suggesting that its 
primary focus is on the dangers confronted by members of our own 
military when deployed abroad into threatening circumstances. section 
5(c), by contrast, refers to United States Armed Forces who are 
``engaged in hostilities.''
    \17\ Cf. Crockett v. Reagan, 558 F. Supp. 893, 899 (D.D.C. 1982) 
(``The War Powers Resolution, which was considered and enacted as the 
Vietnam war was coming to an end, was intended to prevent another 
situation in which a President could gradually build up American 
involvement in a foreign war without congressional knowledge or 
approval, eventually presenting Congress with a full-blown undeclared 
war which on a practical level it was powerless to stop.'').
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    Third, the risk of escalation is limited: U.S. military operations 
have not involved the presence of U.S. ground troops, or any 
significant chance of escalation into a broader conflict characterized 
by a large U.S. ground presence, major casualties, sustained active 
combat, or expanding geographical scope. Contrast this with the 1991 
Desert Storm operation, which although also authorized by a United 
Nations Security Council resolution, presented ``over 400,000 [U.S.] 
troops in the area--the same order of magnitude as Vietnam at its 
peak--together with concomitant numbers of ships, planes, and tanks.'' 
\18\ Prior administrations have found an absence of ``hostilities'' 
under the War Powers Resolution in situations ranging from Lebanon to 
Central America to Somalia to the Persian Gulf tanker controversy, 
although members of the United States Armed Forces were repeatedly 
engaged by the other side's forces and sustained casualties in volatile 
geopolitical circumstances, in some cases running a greater risk of 
possible escalation than here.\19\
---------------------------------------------------------------------------
    \18\ John Hart Ely ``War and Responsibility: Constitutional Lessons 
of Vietnam and its Aftermath'' 50 (1993).
    \19\ For example, in the Persian Gulf in 1987-88, the Reagan 
administration found the War Powers Resolution's pullout provision 
inapplicable to a reflagging program that was conducted in the shadow 
of the Iran-Iraq war; that was preceded by an accidental attack on a 
U.S. Navy ship that killed 37 crewmen; and that led to repeated 
instances of active combat with Iranian forces. See Grimmett, supra 
note 15, at 16-18.
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    Fourth and finally, the military means we are using are limited: 
This situation does not present the kind of ``full military 
engagement[] with which the [War Powers] resolution is primarily 
concerned.'' \20\ The violence that U.S. Armed Forces have directly 
inflicted or facilitated after the handoff to NATO has been modest in 
terms of its frequency, intensity, and severity. The air-to-ground 
strikes conducted by the United States in Libya are a far cry from the 
bombing campaign waged in Kosovo in 1999, which involved much more 
extensive and aggressive aerial strike operations led by U.S. Armed 
Forces.\21\ The U.S. contribution to NATO is likewise far smaller than 
it was in the Balkans in the mid-1990s, where U.S. forces contributed 
the vast majority of aircraft and air strike sorties to an operation 
that lasted over 2\1/2\ years, featured repeated violations of the no-
fly zone and episodic firefights with Serb aircraft and gunners, and 
paved the way for approximately 20,000 U.S. ground troops.\22\ Here, by 
contrast, the bulk of U.S. contributions to the NATO effort has been 
providing intelligence capabilities and refueling assets. A very 
significant majority of the overall sorties are being flown by our 
coalition partners, and the overwhelming majority of strike sorties are 
being flown by our partners. American strikes have been confined, on an 
as-needed basis, to the suppression of enemy air defenses to enforce 
the no-fly zone, and to limited strikes by Predator unmanned aerial 
vehicles against discrete targets in support of the civilian protection 
mission; since the handoff to NATO, the total number of U.S. munitions 
dropped has been a tiny fraction of the number dropped in Kosovo. All 
NATO targets, moreover, have been clearly linked to the Qadhafi 
regime's systematic attacks on the Libyan population and populated 
areas, with target sets engaged only when strictly necessary and with 
maximal precision.
---------------------------------------------------------------------------
    \20\ ``Presidential Power to Use the Armed Forces Abroad Without 
Statutory Authorization,'' 4A Op. O.L.C. 185, 194 (1980).
    \21\ In Kosovo, the NATO alliance set broader goals for its 
military mission and conducted a 78-day bombing campaign that involved 
more than 14,000 strike sorties, in which the United States provided 
two-thirds of the aircraft and delivered over 23,000 weapons. The NATO 
bombing campaign coincided with intensified fighting on the ground, and 
NATO forces, led by U.S. forces, ``flew mission after mission into 
antiaircraft fire and in the face of over 700 missiles fired by 
Yugoslav air defense forces.'' Hearing Before the S. Armed Servs. 
Comm., 106th Cong. (1999) (statement of Gen. Wesley Clark, Admiral 
James Ellis, Jr. & Lt. Gen. Michael Short).
    \22\ See ``Proposed Deployment of United States Armed Forces into 
Bosnia,'' 19 Op. O.L.C. 327 (1995); Dean Simmons et al., U.S. Naval 
Institute, Air Operations over Bosnia, Proceedings Magazine, May 1997, 
available at http://www.usni.org/magazines/proceedings/1997-05/air-
operations-over-bosnia; NATO Fact Sheet, Operation Deny Flight (July 
18, 2003), http://www.afsouth.nato.int/archives/operations/DenyFlight/
DenyFlightFactSheet.htm. U.S. air operations over Bosnia ``were among 
the largest scale military operations other than war conducted by U.S. 
forces since the end of the cold war.'' Simmons et al., supra.
---------------------------------------------------------------------------
    Had any of these elements been absent in Libya, or present in 
different degrees, a different legal conclusion might have been drawn. 
But the unusual confluence of these four factors, in an operation that 
was expressly designed to be limited--limited in mission, exposure of 
U.S. troops, risk of escalation, and military means employed--led the 
President to conclude that the Libya operation did not fall within the 
War Powers Resolution's automatic 60-day pullout rule.
    Nor is this action inconsistent with the spirit of the resolution. 
Having studied this legislation for many years, I can confidently say 
that we are far from the core case that most Members of Congress had in 
mind in 1973. The Congress that passed the resolution in that year had 
just been through a long, major, and searing war in Vietnam, with 
hundreds of thousands of boots on the ground, secret bombing campaigns, 
international condemnation, massive casualties, and no clear way out. 
In Libya, by contrast, we have been acting transparently and in close 
consultation with Congress for a brief period; with no casualties or 
ground troops; with international approval; and at the express request 
of and in cooperation with NATO, the Arab League, the Gulf Cooperation 
Council, and Libya's own Transitional National Council. We should not 
read into the 1973 Congress' adoption of what many have called a ``No 
More Vietnams'' resolution an intent to require the premature 
termination, nearly 40 years later, of limited military force in 
support of an international coalition to prevent the resumption of 
atrocities in Libya. Given the limited risk of escalation, exchanges of 
fire, and U.S. casualties, we do not believe that the 1973 Congress 
intended that its resolution be given such a rigid construction--absent 
a clear congressional stance--to stop the President from directing 
supporting actions in a NATO-led, Security Council-authorized 
operation, for the narrow purpose of preventing the slaughter of 
innocent civilians.\23\
---------------------------------------------------------------------------
    \23\ As President Obama noted in his June 22, 2011, speech on 
Afghanistan: ``When innocents are being slaughtered and global security 
endangered, we don't have to choose between standing idly by or acting 
on our own. Instead, we must rally international action, which we're 
doing in Libya, where we do not have a single soldier on the ground, 
but are supporting allies in protecting the Libyan people and giving 
them the chance to determine their own destiny.''
---------------------------------------------------------------------------
    Nor are we in a ''war`` for purposes of Article I of the 
Constitution. As the Office of Legal Counsel concluded in its April 1, 
2011, opinion,\24\ under longstanding precedent the President had the 
constitutional authority to direct the use of force in Libya, for two 
main reasons. First, he could reasonably determine that U.S. operations 
in Libya would serve important national interests in preserving 
regional stability and supporting the credibility and effectiveness of 
the U.N. Security Council. Second, the military operations that the 
President anticipated ordering were not sufficiently extensive in 
``nature, scope, and duration'' to constitute a ``war'' requiring prior 
specific congressional approval under the Declaration of War Clause. 
Although time has passed, the nature and scope of our operations have 
not evolved in a manner that would alter that conclusion. To the 
contrary, since the transfer to NATO command, the U.S. role in the 
mission has become even more limited.
---------------------------------------------------------------------------
    \24\ Office of Legal Counsel, U.S. Dep't of Justice, President's 
Authority to Use Military Force in Libya, http://www.justice.gov/olc/
2011/authority-military-use-in-libya.pdf (Apr. 1, 2011).
---------------------------------------------------------------------------
    Reasonable minds may read the Constitution and the War Powers 
Resolution differently--as they have for decades. Scholars will 
certainly go on debating this issue. But that should not distract those 
of us in government from the most urgent question now facing us, which 
is not one of law but of policy: Will Congress provide its support for 
NATO's mission in Libya at this pivotal juncture, ensuring that Qadhafi 
does not regain the upper hand against the people of Libya? The 
President has repeatedly stated that it is better to take military 
action, even in limited scenarios such as this, with strong 
congressional engagement and support. However we construe the War 
Powers Resolution, we can all agree that it serves only Qadhafi's 
interest for the United States to withdraw from this NATO operation 
before it is finished.
    That is why, in closing, we ask all of you to take quick and 
decisive action to approve S.J. Res. 20, the bipartisan resolution 
introduced by Senators Kerry, McCain, Durbin, Cardin, and seven others 
to provide express congressional authorization for continued, 
constrained operations in Libya to enforce U.N. Security Council 
Resolution 1973. Only by so doing, can this body affirm that the United 
States Government is united in its commitment to support the NATO 
alliance, the safety and stability of this pivotal region, and the 
aspirations of the Libyan people for political reform and self-
government.
    Thank you. I look forward to answering your questions.

    The Chairman. Thank you very much, Harold Koh. We 
appreciate the testimony enormously.
    I am going to reserve my time for such time as I may want 
to intervene with my questions, and I will turn to Senator 
Lugar to start.
    Senator Lugar. Mr. Koh, one of the reasons why it is 
important to have this hearing and likewise debate on this 
issue is that throughout the Middle East, but even throughout 
the world, there are a number of situations in which the United 
States and other nations have severe disapproval of the 
governments of those countries. As a matter of fact, from time 
to time, we make speeches. We editorialize. We work with others 
in the United Nations to attempt to bring about conditions that 
are better for the people of countries that we believe are 
under a totalitarian or very authoritarian misrule.
    Now, in this particular instance, the Libyan situation 
arose following uprisings in Tunisia and Egypt, which certainly 
caught the attention of the United States and the world, quite 
apart from the Arab League and the United Nations and NATO.
    In the case of Libya, however, the Arab League and the 
United Nations and NATO and what have you and ultimately the 
United States made a decision to intervene in a civil war. 
There was shooting going on in Libya. It could very well be 
that persons who were innocent might be caught in the 
crossfire. This is the tragedy of civil wars, I suspect, 
wherever they may be held on this earth.
    In this particular instance, our decision was to intervene 
in a civil war, and we are continuing to intervene in a civil 
war. And despite the fact that we talk about limited 
hostilities, we also talk openly as a Government about the end 
of the Muammar Qadhafi rule, about the importance of Qadhafi 
leaving the country, and we even send out rumors that he may be 
entertaining such thoughts.
    My basic question is if we do not have some ground rules, 
the War Powers Act may be one area where we try to work this 
thing out or a more formal declaration of war. And this country 
could decide to intervene in numerous civil wars. It could 
decide really to affect the governance of peoples all over the 
world that we feel is unfair.
    What is your general comment about this predicament? In 
other words, you may feel very strongly that the Qadhafi rule 
is so egregiously out of line as opposed to all the other 
dictators that we have witnessed all over the earth that there 
is no doubt that we should intervene to prevent him from 
winning, to prevent him from shooting at people who may be 
opposing him and who may be shooting at him and his forces. 
What is the ground rule for dealing with civil war wherever we 
may find it all over the earth?
    Mr. Koh. Senator, thank you for that very thoughtful 
question. You have, over your career, been one of the most 
thoughtful defenders of the Constitution in foreign affairs. 
And I recognize the difference of view between what I have 
expressed and what you have expressed is from a good faith 
disagreement. I understand the concern that you have.
    But throughout the Middle East, there is only one situation 
in which there is a U.N. Security Council resolution narrowly 
drawn in which NATO has agreed to take command of the 
operation, in which the Arab League supported the operation, in 
which four Muslim countries were ready to join the coalition, 
have been flying flights, and in which the President was, as I 
have suggested, able to structure the mission so that it was of 
limited nature, so the United States would move very quickly 
into a limited supporting role, where there would be no ground 
troops so that there would be a limited exposure, where the 
risk of escalation would be low, and where the United States 
after the transition would narrow the means being employed so 
that only its unique capabilities could be used to prevent 
Qadhafi from using the tools of command and control to kill his 
own people. So that is a very unusual set of circumstances. And 
what we are saying is in that set of circumstances, the 
President acted lawfully in proceeding as he did.
    Now, the wisdom of proceeding in other countries is, 
obviously, a subject of substantial discussion. It would be 
complicated, I am sure, to replicate that unusually narrow set 
of facts.
    But I say this because I think that our theory and legal 
approach has been dramatically misunderstood. There is some 
suggestion that we are flouting the Constitution. In fact, we 
have made it clear that we are not challenging the 
constitutionality of the resolution. What we are arguing about 
is whether a very unusual situation fits within a resolution 
that has been on the books now for almost 40 years and which 
was designed to play a particular role and will have to be 
adapted to play that role effectively in this century.
    Senator Lugar. Well, obviously, I raise the question 
because I fear that there may be circumstances in which we make 
a decision based upon the Security Council or somebody else to 
intervene in other situations. I would like our own war powers 
declaration to be clarified before we get to that point.
    I raise one more point, and this may require more hearings, 
and that is, although we say that the force that we are 
offering is limited--and this could include the missiles that 
we fire or drone strikes or what have you--my guess is that if 
another country were employing such methods against us without 
employing any troops on the ground in the United States or any 
of the so-called conventional means of war, we would see this 
as an act that was hostile. This would clearly be hostilities. 
Very clearly, we would say that is grounds for us to be at war 
with whoever is firing at us in these situations.
    This is why I think perhaps the administration needs to 
work with the Congress to try to think through in this era of 
drone warfare or long-distance warfare. That is not a question 
simply of whether American casualties occur or there are 
hostilities on the ground. A war in the future may be fought in 
an entirely different way, perhaps not encompassed by the War 
Powers Act, but surely needing to be encompassed by all of us 
who are thoughtful about the evolution of these hostilities.
    Mr. Koh. Well, Senator, you make two points.
    I was thinking this morning, as I was coming up here, that 
the first time I testified before the Senate on war powers 
issues was in January 1991 as Desert Shield was about to become 
Desert Storm. There was a U.N. Security Council resolution 
there. But the question was did you also need an authorization 
of use of military force. And my position there, which remains 
the same, is that in that circumstance, despite the fact of a 
multinational coalition authorized by a Security Council 
resolution, the proposal for 400,000 U.S. troops and comparable 
vessels and accompanying forces which was the number of forces 
in Vietnam at its height. So a U.N. Security Council resolution 
alone does not absolve a situation of requiring approval.
    What makes this situation unusual is not the existence of a 
Security Council resolution, but the fact that the mission that 
has been structured under it is so limited with the U.S. 
playing such a narrow and supporting role and with such limited 
exposure. We are talking about, as Senator Kerry said, no 
casualties, no threat of casualties, no significant armed 
engagements.
    Now, another point that has been made by some about our 
legal approach is that we are somehow suggesting that drones 
get a free pass under the War Powers Resolution. That is not at 
all what we are saying. But you make the key point which is 
when the statute talks about the introduction of U.S. Armed 
Forces into hostilities and what you are sending in is an 
unmanned aerial vehicle high in the sky, it is not clear that 
that provision was intended to apply to that particular weapon.
    Now, it does lead to the question of how to update the War 
Powers Resolution for modern conflict. There will be situations 
of cyber conflict and other kinds of modern technologies coming 
into play which Senators and Members of Congress never 
envisioned in 1973. So it may well be--and I think you make the 
point well--that there was an effort here in the wake of 
Vietnam to draw a kind of framework statute that would allocate 
authorities, call for reporting, try to promote dialogue. That 
has existed for nearly 40 years. But many of the provisions, 
particularly the mechanical ones such as the automatic pullout 
provision, may turn out to be poorly suited for the current 
situation.
    Senator Lugar. Thank you.
    The Chairman. Thank you, Senator Lugar.
    Senator Casey.
    Senator Casey. Thanks very much.
    I wanted to pursue some of the same line of questioning, 
and I appreciate the fact that this is difficult as a matter of 
constitutional law but also difficult as a matter of policy and 
perception.
    I hear a lot from people in Pennsylvania that have real 
concerns about this policy not only on some of the 
constitutional debates we are having but just in terms of the 
clear impression that has been created that we are engaged in 
hostilities of one kind or another. It gets very difficult for 
people to separate from that perception.
    There are reports we know, at least according to the New 
York Times, that since this handoff took place, that United 
States warplanes have struck, according to this one report, 60 
Libyan targets and, at the same time, unmanned drones, 
according to this report, fired at Libyan forces roughly 30 
times.
    So in the context of that reporting, I would ask you about 
this broader question, I guess--or it is actually a more 
pointed question--as it relates to the administration's 
justification of armed drone attacks and so-called nonhostile 
operations. How do you get there just as a matter of law?
    Mr. Koh. Thank you, Senator. I appreciate again the 
thoughtfulness of the question, which I think is a very good 
one.
    In the early days of the Libyan action, as Secretary Gates 
described, the goal was to create a no-fly zone to prevent 
Qadhafi from attacking his own people. As we point out in 
footnote 5 of my testimony, Qadhafi appears to have rules of 
engagement that call for indiscriminate attacks on his own 
people, no mercy rules, rape as a weapon of war. These have led 
to both the commission of inquiry and yesterday an arrest 
warrant against him at the International Criminal Court.
    So the question of what kind of military mission to 
structure--to respond--and the core of it was, first, the 
establishment of the no-fly zone, and then, second, for the 
United States to shift from a lead role into a support role. 
And the bulk of the contributions, as I have suggested, has 
been primarily intelligence, refueling, search and rescues, 
flyovers, and the like with no fire at all.
    But there are two elements that have been added to the 
picture. One is enemy air defenses. If Qadhafi's command and 
control existed and if initial efforts have been made to 
destroy that command and control and he shifts those operations 
to other command and control, he can replicate his capacity to 
kill civilians. And so to move from one and then stop is simply 
allowing Qadhafi in a game of Whac-A-Mole to return to the very 
acts that led to the intervention in the first place.
    That has been the basis of the notion that American strikes 
should be authorized on an as-needed basis to suppress enemy 
air defenses, to enforce the no-fly zone, and then the unique 
capabilities that American military forces have been requested 
by the NATO allies to hit particular discrete targets to 
support the civilian protection mission, particularly command 
and control or other kinds of antiaircraft which are difficult 
to reach by other means.
    Now, let me emphasize again some numbers that I gave 
earlier because I think they are important. In the overall 
number of sorties that have been flown, the United States is 
flying a quarter, but in the strike sorties that are being 
flown, the United States is flying only 10 percent. The 
Predator strikes, as you suggested, are a relatively small 
number. And the total number of munitions dropped by either 
manned or Predators at this moment, according to our best 
information, is less than 1 percent of the amount that was 
dropped in Kosovo, in which there was a substantial debate over 
the application of the War Powers Resolution.
    So you came back to the question, are we engaged in 
hostilities? This is, as I said, not a parsing of dictionary 
terms. It is a statutory provision. Congress passes provisions 
all the time that have terms of art like ``emergency.'' The 
word ``treaty'' in one statute was recently read to mean 
``executive agreement.'' I am sure the Foreign Relations 
Committee might have some questions about that, but that is the 
ruling of the Supreme Court. Here the word chosen was 
``hostilities,'' and over time hostilities has been defined 
through executive and congressional practice to encompass some 
level of strikes with a major focus, as I have suggested, being 
on whether the mission is limited, whether the risk of 
escalation is limited, whether the exposure is limited, and 
whether the choice of military means is narrowly constrained. 
And it is within that set of four limitations that apply here 
that it was our conclusion that we are well within the scope of 
the kinds of activity that in the past have not been deemed to 
be hostilities for purposes of the War Powers Resolution.
    Senator Casey. I will ask you some other questions by way 
of supplemental written questions.
    But I would ask you as well, in connection with this, are 
you concerned about the precedent here as it relates to 
Executive power. Do you have any concerns about that? Do you 
think that this is breaking new ground?
    Mr. Koh. Well, there are two different questions, Senator.
    Of course, I am concerned about the precedent. I have spent 
much of my academic career writing about the balance of powers 
between Congress and the Executive in foreign affairs. In 1990, 
my first book on this subject, I pointed out that the basic 
structural flaw of the War Powers Resolution, which has a 
number of virtues--one of the virtues is it promotes dialogue 
through a blunt time limit. But one of its structural flaws is 
that it requires an automatic pullout with Congress ever having 
made a specific judgment about whether or not they approve or 
disapprove of an action. And that could lead in certain 
circumstances to atrocities resuming because of the lack of a 
clear congressional stance. The goal in the Vietnam era was to 
try to find a single congressional position that could be 
applied.
    Now, I agree that there have been cases in which the 
executive branch has overreached. I have written about this in 
my academic work for many years, which is precisely why the 
precedent here we think has been narrowly drawn. As I said, we 
are not challenging the constitutionality of the resolution, 
which a number of administrations have. We are not saying the 
War Powers Resolution should be scrapped, whether it is 
constitutional or not. What we are simply saying is that when 
the mission is limited, the risk of escalation is limited, the 
threat to troops is limited particularly because of no ground 
troops, and when the tools being used are extremely limited, 
that that does not trigger the 60-day clock.
    And in doing so, we look to Executive and congressional 
precedents dating back to 1975, the Persian Gulf tanker 
controversy, Lebanon, Somalia, Grenada, to see where it fit. 
And when you have a situation in which something like Kosovo or 
Bosnia where campaigns on a very large scale--and we are 
talking here about a zero casualty, little or no risk of 
escalation situation and 1 percent of the munitions, that 
strikes us as a difference that ought to be reflected in 
whether it fits within the scope of the statute.
    So the very rationale that I am presenting today is 
limited. If any of those elements are not present, none of what 
I have said necessarily applies. You would have to redo the 
analysis.
    Senator Casey. Thank you.
    The Chairman. Thank you, Senator Casey.
    Senator Corker.
    Senator Corker. Thank you, Mr. Chairman.
    And thank you for your testimony. I do want to say that in 
many cases I have heard certainly you today, but the 
administration try to justify sort of the ends--or the means 
for the end. I know that you have talked a little bit about 
Libya and Qadhafi and your handling of this. I just want to say 
that those are two very, very separate issues, and I am sure 
that up here there are people who have very differing opinions 
about our involvement in Libya but still have strong concerns 
about the way the administration has handled the actual process 
itself. So I do not think it is very helpful to try to meld the 
two together, and I think it really waters down the issue at 
hand.
    I will say then that I find it humorous sitting here on the 
Foreign Relations Committee, the most deliberative body in the 
world some say, and basically you guys have not provided 
witnesses from the Department of Justice or the Pentagon. We 
seem to take that as a humorous thing. You know, the 
administration has basically said there is no reason for us to 
get any kind of resolution from Congress, and yet the Senate 
today in its urge to be ``relevant'' is rushing to give the 
administration a resolution even though it is basically saying 
in this case the Senate is irrelevant.
    So I would ask you this one question. Now that you have 
taken this argument and seen the response that you have gotten 
from people on both sides of the aisle, are you still glad that 
you traveled this route as it relates to making the argument 
you have made about the War Powers Act?
    Mr. Koh. Senator, I believe this argument. I think it is 
correct. I would not be here if I did not believe that.
    Senator Corker. I did not ask that. Are you glad that you 
basically created an issue where no issue had to exist by 
taking this narrowly defined route and basically sticking a 
stick in the eye of Congress? I mean, is that something that 
you are glad you have done?
    Mr. Koh. Senator, that was not our intent, and if you felt 
that a stick was stuck, that was not the goal.
    You said a number of things which I thought I should 
include in my answer.
    One, the War Powers Resolution is not a mechanical device. 
It has to be construed in light of the facts at the time. 
Otherwise, the 1973 Congress would be making decisions instead 
of the Congress of 2011. So it has to take account of the 
circumstance.
    Second, with regard to witnesses, I am the legal adviser of 
the State Department. Footnote 1 of my testimony reviews the 
many times that the legal adviser has appeared before this and 
other committees to present on the War Powers Resolution. This 
is my committee of jurisdiction. You voted my confirmation, and 
so I am here for the conversation.
    Third, it was our position from the beginning that we were 
acting consistently with the War Powers Resolution, but that we 
would welcome support because, as Senator Lugar said, the 
President would always value a bipartisan support for this kind 
of effort or mission.
    And finally, you asked whether we have made errors. I think 
that this controversy has probably not played out exactly as 
some would have expected. If we had to roll the tape back, I am 
sure there are many places where some would have urged--and I 
would have been among them--coming up earlier for more 
briefings and to lay out these legal positions. For my part of 
that, I take responsibility.
    But I do believe that at the end of the day, the last thing 
we are saying, Senator--in fact, the thing we are not saying is 
that the Senate is irrelevant. To the contrary.
    Senator Corker. We are making ourselves irrelevant.
    Let me do this. This is a long answer. I would like to have 
just a--I wanted to give you the respect of answering. I did 
not really want you to answer everything I just said, but since 
you have, I would like to have a couple extra minutes. Do you 
want to say any more regarding my opening comments?
    Mr. Koh. I think the point of my testimony is however the 
legal question is addressed, there is still fundamentally the 
question of what to do about the civilians in Libya. And that 
is a decision on which the Senate can make a decision this 
afternoon. This committee.
    Senator Corker. Well, I do not think we are really making 
any decisions than are different than what you are carrying 
out. So we are rushing to make ourselves irrelevant this 
afternoon by virtue of passing something out that basically 
says--you know what it says.
    So let me ask you this. The chairman mentioned that since 
no American is being shot, there are no hostilities. Of course, 
by that reasoning, we could drop a nuclear bomb on Tripoli and 
we would not be involved in hostilities. It just goes to the 
sort of preposterous argument that is being made.
    But I do think one of the issues of precedence that you are 
setting is that Predators now--and I do want to remind you the 
Justice Department of this administration has spent lots of 
time trying to deal with people's rights as it relates to 
terrorism and that kind of thing. And yet, basically what you 
all are doing by arguing this narrow case is saying that any 
President of the United States, Republican or Democrat, can 
order Predator strikes in any country and that is not 
hostilities. And of course, we know what Predators do. I think 
you know what they do, and lots of times human beings are not 
alive after they finish their work.
    So basically what you are doing is arguing that a President 
can order Predator strikes in any place in the world by virtue 
of this narrow argument that you have taken and that is not 
hostilities and Congress plays no role in that.
    Mr. Koh. Senator, that is not what I am arguing. Obviously, 
if Predator strikes were at a particular level or if we were 
carpet bombing a country using Predators, that would create a 
dramatically different situation. But the scenario that I have 
described to Senator Casey is a very different one. Within the 
constraints of this particular mission without ground troops, 
the Predators are playing a particular role with regard to the 
elimination of certain kinds of assets of Qadhafi that are 
being used to kill his own civilians. Even the numbers that 
Senator Casey mentioned are not close to the kind of level that 
we would consider to be ones that would trigger the pullout 
provision.
    So I think the important thing--and the question that had 
been asked was are we presenting a limited position. Yes, 
because all four limitations are what bring it within the line 
of the statute. We do not say that any element at all by itself 
could not be expanded out of shape and require a reexamination 
under the War Powers Resolution. I gave the example of a U.N. 
Security Council situation, Desert Storm, that required 
approval because of the scale of the operation.
    Senator Corker. I think you have established a precedent. 
This administration has established a precedent for this 
country by taking this argument that any President, Republican 
or Democrat, can use Predators in any country they wish because 
that is limited hostilities without Congress being involved.
    I am going to probably come to a close quicker than I 
wanted to because of the time.
    But we do have aircraft flying over Libyan airspace. Do we 
not? That is yes or no.
    Mr. Koh. Yes; we do.
    Senator Corker. And we do know that there are numbers of 
types of weapons that they have that could, in fact, take down 
our aircraft that are not necessarily in fixed positions. Is 
that correct?
    Mr. Koh. That is correct.
    Senator Corker. So to say that our men and women in uniform 
are not in a position to encounter hostilities or involved 
hostilities is really pretty incredible.
    You know, you cite the fact that hostilities has never been 
defined. I went back and read the House conference which 
basically reported out the War Powers Act. As a matter of fact, 
they tried to make it a lesser level. They started out with 
``armed conflict,'' and then they used the word 
``hostilities.'' And they did so in such a manner to certainly 
talk about the kinds of conditions that exist today on the 
ground. So when you say that these are not hostilities, that is 
just patently not the intent of Congress when they passed the 
War Powers Act.
    Now, you have introduced something unique, a mathematical 
formula. And I am sure future Presidents will use a 
mathematical formula. In other words, if we are only doing X 
percent of the bombing, then we are not involved in 
hostilities. But I find that not in any way to jibe with what 
the House sent out in its reporting language.
    I am just going to close with this because my time is up, 
and I know the chairman is getting impatient.
    I did not support your nomination. I thought you are a very 
intelligent person obviously, very well learned. But I felt 
that you had the likelihood to subject U.S. law or to cause it 
to be lesser important than international law. And while I made 
no statement to that effect publicly, I told you that privately 
when we met in our office. And that is exactly what you have 
done. You basically said the United Nations has authorized this 
and there is no need for Congress to act and we are going to 
narrowly define hostilities.
    I would guess at night, however people of your category 
give high fives, you are talking to other academics about this 
cute argument that has been utilized. But I would say to you 
that I think you have undermined the credibility of this 
administration. I think you have undermined the integrity of 
the War Powers Act. And I think by taking this very narrow 
approach, you have done a great disservice to our country.
    And I do hope--I do hope--that at some point we will look 
at the War Powers Act in light of new technology, in light of 
new conflicts, and define it in a way that someone using these 
narrow and what I would call cute arguments does not have the 
ability to work around Congress.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Corker.
    I think it is important, obviously, to have these views 
out. I was not growing at all impatient. I am happy to give you 
extra time. I think this is an important discussion. As I think 
you know, Senator, I value my friendship and our relationship a 
lot.
    But I do have to tell you, based on what you just said, 
that your facts are just incorrect. I mean, your basic facts on 
which you are basing your judgment is incorrect. Let me tell 
you why.
    First of all, the President of the United States accepts 
the constitutionality of the War Powers Act and sought to live 
by it. No President has done that yet.
    Senator Corker. I did not argue that. So that is not a 
fact----
    The Chairman. Well, but it is a fact because you come to 
the next point. Having done that, the President sent us a 
letter before the expiration of the time period. And in the 
letter--and I am going to put the letter in the record--he 
says: ``Dear Mr. Speaker and Mr. President, the President Pro 
Tem in the Senate, on March 21, I reported to the Congress that 
the United States, pursuant to a request from the Arab League 
and authorization by the United Nations Security Council, had 
acted 2 days earlier to prevent a humanitarian catastrophe by 
deploying U.S. forces to protect the people of Libya.''
    He then goes on. I am not going to read the whole thing. 
But then he says: ``Thus, pursuant to our ongoing 
consultations, I wish to express my support for the bipartisan 
resolution drafted by Senators Kerry, McCain, Levin, Feinstein, 
Graham, Lieberman which would confirm that the Congress 
supports the U.S. mission in Libya and that both branches are 
united in their commitment to supporting the aspirations of the 
Libyan people.''
    Now, he asked us to do that before the expiration of the 60 
days. But we did not do it. Do not blame the President. The 
Congress of the United States did not do it, and let me tell 
you why bluntly. Because both leaders in both Houses were 
unwilling at that point in time to do it. You know, let us be 
honest about this.
    Senator Corker. Well, I am being very honest, and I think 
that parsing words----
    The Chairman. Well, you are not being honest.
    Senator Corker. And I have the ability to express my 
opinion just like you do and to use facts just like you do. And 
if you want to get into a debate about this right now, I am 
glad to do that. I would like----
    The Chairman. Senator, you are not letting me finish my 
point which is that you are saying the President violated the 
process here and did not come to the Congress. He did come to 
the Congress. He sent us a letter requesting us to do the 
authorization and we did not do it. That is the simple fact 
here.
    Moreover, there is a constitutional question here because 
in paragraph (b) of the War Powers Act, it says that the 
President shall terminate any use of the United States Armed 
Forces with respect to such report submitted unless the 
Congress has either declared war or has enacted a specific 
authorization within the 60-day period. So if Congress does not 
act, Congress can, in effect, by its lack of action challenge 
the constitutional right of the President to do something. That 
is, in effect, a constitutional standoff.
    And any Senator could have gone to the floor of the U.S. 
Senate with a resolution during those 60 days. No Senator chose 
to do so.
    So all I am saying is I am not going to sit here and let 
everybody throw the dart at the White House saying the 
President violated this and that when he was the first 
President to ever say I accept the constitutionality of the War 
Powers Act. Second, he sent us a letter before the expiration 
of the time asking us to pass the authorization. And third, I 
will say this to you as the chairman. I went to the leaders. 
Nobody wanted to do it. So here we are.
    So the real relevant question here is whether or not--I 
agree with you. I think there are some serious constitutional 
questions about Predators, how do they fit, and I think Legal 
Adviser Koh has accepted that. We need to exercise our 
responsibility to modernize this.
    But the mere fact that hostilities are taking place--and 
they are--does not per se mean United States Armed Forces have 
been introduced into those hostilities if they are not being 
shot at, if they are not at risk of being shot at, if there is 
no risk of escalation, if the mission is narrowly defined.
    So I know none of us want to get trapped in the legalese 
here and we want to try to do this in the right way. But it is 
just wrong to suggest that somehow the President went outside 
the constitutional process here when, in fact, Congress--us--
have done nothing within those 60 days to either authorize it 
or declare war or not.
    [The May 20, 2011, letter from the President on the War 
Powers Resolution follows:]

    Dear Mr. Speaker and President Pro Tem: On March 21, I reported to 
the Congress that the United States, pursuant to a request from the 
Arab League and authorization by the United Nations Security Council, 
had acted 2 days earlier to prevent a humanitarian catastrophe by 
deploying U.S. forces to protect the people of Libya from the Qaddafi 
regime. As you know, over these last 2 months, the U.S. role in this 
operation to enforce U.N. Security Council Resolution 1973 has become 
more limited, yet remains important. Thus, pursuant to our ongoing 
consultations, I wish to express my support for the bipartisan 
resolution drafted by Senators Kerry, McCain, Levin, Feinstein, Graham, 
and Lieberman, which would confirm that the Congress supports the U.S. 
mission in Libya and that both branches are united in their commitment 
to supporting the aspirations of the Libyan people for political reform 
and self-government.
    The initial phase of U.S. military involvement in Libya was 
conducted under the command of the United States Africa Command. By 
April 4, however, the United States had transferred responsibility for 
the military operations in Libya to the North Atlantic Treaty 
Organization (NATO) and the U.S. involvement has assumed a supporting 
role in the coalition's efforts. Since April 4, U.S. participation has 
consisted of: (1) non-kinetic support to the NATO-led operation, 
including intelligence, logistical support, and search and rescue 
assistance; (2) aircraft that have assisted in the suppression and 
destruction of air defenses in support of the no-fly zone; and (3) 
since April 23, precision strikes by unmanned aerial vehicles against a 
limited set of clearly defined targets in support of the NATO-led 
coalition's efforts.
    While we are no longer in the lead, U.S. support for the NATO-based 
coalition remains crucial to assuring the success of international 
efforts to protect civilians from the actions of the Qaddafi regime. I 
am grateful for the support you and other Members in Congress have 
demonstrated for this mission and for our brave service members, as 
well as your strong condemnation of the Qaddafi regime. Congressional 
action in support of the mission would underline the U.S. commitment to 
this remarkable international effort. Such a Resolution is also 
important in the context of our constitutional framework, as it would 
demonstrate a unity of purpose among the political branches on this 
important national security matter. It has always been my view that it 
is better to take military action, even in limited actions such as 
this, with Congressional engagement, consultation, and support.
            Sincerely,
                                                      Barack Obama.

    Senator Corker. Well, Mr. Chairman, I would just respond 
that I think the central element of my argument to Mr. Koh who, 
by the way, I very much respect his intellect--I do not respect 
his judgment in this particular case. My argument is around the 
issue of hostilities. That is what the focus of my argument 
was, and by narrowly defining that or being cute where you say 
I support the constitutionality of the War Powers Act, but on 
the other hand, since we are not really involved in 
hostilities--wink, wink--we really do not need to deal with 
Congress. That is the part. That just happened on the 15th.
    I do not think anybody in this body had any idea that the 
President would take such a narrow, narrow interpretation of 
hostilities. I do not think anybody knew that. I think it has 
been a shock to all. I think the President wishes he had 
handled this differently because what has happened is by being 
cute, they have introduced a whole other debate here that 
should not be taking place. And my guess is they might have 
gotten overwhelming support for a limited operation, whether I 
support it or not. What they have done by trying to have it 
both ways, which is what they did with the June 15 letter, is 
interject a debate that has to do with credibility, has to do 
with integrity, and to me is a great disservice to this 
country.
    So I stand by what I just said. It is factual. And I will 
be glad to debate this all day long.
    The Chairman. Well, hopefully, we do not have to do that at 
2:30 this afternoon. I am sure that we can do it without 
debating it all day long.
    But I do think that it is important. I did hear you say, 
quote, rushing to give a resolution and I heard you say the 
Senate is irrelevant. And I think that when you measure those 
things against the reality of what the President asked us to 
do, any of this issue is really because the Senate has been 
having a very difficult time getting anything done lately.
    Senator Webb.
    Senator Webb. Thank you, Mr. Chairman.
    I would like to express my admiration for Senator Corker 
showing me how to turn 7 minutes into 25 minutes. [Laughter.]
    I have been trying to figure out how to get more time on 
this committee for 4\1/2\ years.
    I would just like to say a couple things very quickly in 
reaction to the exchange that just took place. One of them is 
that whether or not the President consulted with certain people 
in the Senate, and whether or not there was a request for us to 
validate the actions, the issue before us right now is this 
administration is coming forward and saying the War Powers Act 
does not apply in this situation because of their very narrow 
and, in my opinion, contorted legal definition of 
``hostilities.'' That is the issue that is before us--not the 
other one.
    I would just like to say I think the most unusual part of 
this decision was not simply the issue that Senator Corker 
raised, which is a very important issue in terms of the use of 
indirect fire, but the use by a President of a very vague 
standard that he or she can unilaterally inject military force 
into situations around the world based on a vague standard of 
humanitarian assistance. We have not seen that before. And that 
is something that demands a certain amount of accountability. 
This was the major reason that I started to become concerned 
with the way this operation was unfolding.
    But I will say when you have an operation that goes on for 
months, costs billions of dollars, where the United States is 
providing two-thirds of the troops even under the NATO fig 
leaf, where they are dropping bombs that are killing people, 
where you are paying your troops offshore combat pay--and there 
is a prospect of escalation. It has something I have been 
trying to get a clear answer from with this administration for 
several weeks now, and that is the possibility of a ground 
presence in some form or another once the Qadhafi regime 
expires. I would say that is hostilities.
    Now, Mr. Koh, there was a debate inside the administration 
on this definition. Was there not?
    Mr. Koh. The President took the position and that is the 
position----
    Senator Webb. Yes, but there was a debate as to the issue 
of whether this constituted hostilities, and we have read about 
it in the paper.
    Mr. Koh. Well, Senator----
    Senator Webb. Just yes or no.
    Mr. Koh. I cannot comment on----
    Senator Webb. Well, for the record, there is plenty of 
reporting that there was a good bit of debate as to whether 
this was the right way to go.
    What do you make of the fact that military offshore are 
receiving combat pay?
    Mr. Koh. They are also receiving it in Burundi, Greece, 
Haiti, Indonesia, Jordan, Montenegro, Saudi Arabia, Turkey, and 
dozens of other countries under the same provision. It does not 
mention hostilities, and I do not think anybody believes that 
we are in a War Powers Resolution situation in those countries. 
We are talking about something different.
    I think the point, Senator, which--these are hard 
questions.
    Senator Webb. I do not mean to interrupt you, but I really 
only have about 7 minutes here.
    The Chairman. I will give you time. These are important 
issues.
    Senator Webb. All right. Then go ahead and finish your 
thought.
    Mr. Koh. Imminent danger pay is given on a different basis 
than hostilities. And so one statute applies to one and one 
applies to the other.
    At the end of the day, this is a question of statutory 
interpretation. It is not the administration that is saying 
that drones are not covered. The question is whether when you 
have an unmanned aerial vehicle, that is an introduction of a 
U.S. armed force in a statute that was drafted by Congress. So 
if that language no longer works, then----
    Senator Webb. Well, in general, because if you are engaged 
in a Vietnam type military operation, which I was, you have 
certain support elements that are providing indirect assistance 
to the people who are putting bullets on the battlefield. I 
really do not see any distinction here in the Vietnam 
environment, or a journalist in Afghanistan, or if was a 
journalist in Beirut. Not everybody is a trigger puller. The 
definition that you are using that makes a distinction between 
aircraft that are refueling the bombers or conducting 
intelligence activities or surveillance is an artificial 
distinction.
    Mr. Koh. Well, Senator, nobody is saying that something 
replicating Vietnam at this moment would not be----
    Senator Webb. No; I am not talking about Vietnam per se. I 
am talking about multiple environments: Afghanistan, same. 
Beirut--same thing.
    Mr. Koh. I think you make the most important point of all, 
Senator. These are questions of judgment. In your role in the 
Navy, you played that role of exercising that judgment. It is 
not a mechanical formula. And the question is whether the 
mission, when it has been shaped this particular way in this 
particular setting with this particular risk of escalation, 
exposure, which are very low----
    Senator Webb. You have repeated that language several times 
today. I understand your point on that language.
    Let me ask you another question because it is very 
important.
    We still have not severed relations with the Qadhafi 
government. Or have we? If we have, it has been in the last 
week or so. We have suspended our relations with Qadhafi 
regime, but we have not severed relations. So technically we 
still recognize this government. Would that be a correct 
interpretation?
    Mr. Koh. Well, Senator, we are trying to hold them 
responsible----
    Senator Webb. No, no. Give me a legal answer. We have not 
severed relations. Is that correct?
    Mr. Koh. And the reason for that----
    Senator Webb. No. Is that correct?
    Mr. Koh. The relations have been suspended.
    Senator Webb. They are suspended but they have not been 
severed.
    Mr. Koh. That is correct.
    Senator Webb. So what is the constitutional limitation on 
the assassination of a head of state?
    Mr. Koh. The assassination of a head of state is restricted 
by Executive order. That Executive order is enforced. Admiral 
Locklear has made clear that despite press reports, he has not 
expressed a view.
    Senator Webb. So the Executive order would say that there 
is preclusion against the assassination of a head of state.
    Mr. Koh. Well, the wording of it is an unlawful act, and 
the interpretation of the assassination ban would depend on the 
facts of the situation.
    But I think the reason for the lack of severing is so that 
the Qadhafi government can remain responsible under 
international law for those things that Qadhafi is doing by 
using the forces of the government.
    Senator Webb. I understand that. I understand that. You 
cannot distinguish that out on this point any more, quite 
frankly, I think it is relevant to distinguish out hostilities 
based on these other realities. And, there are people who are 
going to have differences of opinion about that. But I wanted 
to make that clear because there is a lot of talk up here about 
the way in which Qadhafi should exit. Nobody up here wants him 
to remain, but the moral standard that we set on issues like 
this is the same one that we should expect and it is a point we 
need to be thinking about.
    Thank you, Mr. Chairman.
    The Chairman. I think it is a good point, Senator Webb, and 
I am glad you raised it and I appreciate the line of 
questioning.
    I do not want you to feel cut off because there are only 
two other Senators. Obviously, the purpose of having the 
limitation is when everybody is here, but if there are four or 
five of us, I am very happy to let Senators go longer. So I 
want to make sure you feel----
    Senator Webb. Thank you, Mr. Chairman. I feel well taken 
care of today. Thank you.
    The Chairman. Thanks. I appreciate it. [Laughter.]
    The Chairman. Senator Lee.
    Senator Lee. Thank you so much for joining us today.
    I want to start out by thanking the members of our Armed 
Forces, those who sacrifice much in order to place themselves 
in harm's way to stand up for American national security. I 
appreciate them.
    The issue we are discussing today does implicate a number 
of questions that are important to American national security 
especially when we consider the fact that there are lots of 
places in the world where our national security is in one way 
or another placed in jeopardy by some of the things that people 
are doing and things that people are saying. So I think it is 
appropriate that we have this discussion because we want to 
make sure that when we deploy these people, these brave young 
men and women who serve us and serve us so well, that we are 
doing so in a way that maximizes their utility to protecting 
Americans at home.
    The first question I would like to ask you relates to the 
definition of the term ``hostilities'' as used in section 1541 
and elsewhere in the War Powers Resolution. How do you define 
the term ``hostilities'' as used in the War Powers Resolution?
    Mr. Koh. As our testimony sets forth, the effort to define 
it--and this is described in the descriptions of the 
conversations of Senator Javits, the sponsor, et cetera, was to 
leave the matter for subsequent executive practice.
    Senator Corker had mentioned the House conference report 
had originally proposed the term ``armed conflict.'' There was 
an irony in the question which is that ``armed conflict'' is a 
term of international law. They deliberately did not import 
that term into this statute precisely so that international law 
would not be the controlling factor.
    And the net result was that in 1975 under the Ford 
administration--and you know it well because of service that 
your own family did in that administration--the Congress--and 
this is in the first footnote of my testimony--invited the 
legal adviser, my predecessor, Monroe Leigh, to come forward 
with a definition of hostilities from the executive branch, 
applying exactly the judgments that we are describing here. And 
in my testimony, I describe the response that was given by Mr. 
Leigh and his coauthor in which they essentially set forth a 
standard--and this is on page 6 of the testimony--in which they 
said the executive branch understands the term ``to mean a 
situation in which units of the U.S. Armed Forces are actively 
engaged in exchanges of fire with opposing units of hostile 
forces,'' and then said that the term should not include 
situations which were ones in which the nature of the mission 
is limited, where the exposure of U.S. forces is limited, where 
the risk of escalation is limited, or when they are conducting 
something less than full military encounters as opposed to 
surgical military activities.
    Senator Lee. Where is that from, Mr. Koh?
    Mr. Koh. It is described on page 6 of my testimony and it 
is in the first footnote, the letter from State Department 
Legal Adviser Monroe Leigh with regard to the Mayaguez incident 
to the International Security and Scientific Affairs of the 
House Committee on International Relations.
    It is an important document, Senator, because Congress 
acknowledged that it did not know what hostilities meant from 
the legislative history alone, and so they invited the 
executive branch to give clarification.
    Senator Lee. And I do not disagree with the broader 
definition, but like so many definitions, that one has been 
severely undermined and here, I believe arguably, vitiated by 
the exceptions to it. Does it not strike you as something that 
is a little bit dangerous to say? Even when we have our own 
armed services or armed personnel firing upon the military 
establishment, the radar systems, and other components of a 
foreign nation's defense system on their foreign soil, 
regardless of whether we have got boots on the ground, it seems 
to me to be hard to say that that does not involve hostilities.
    Given the limitations on our time, though, I would love to 
take a step in a different direction and then come back to 
this, if we have got time afterward.
    In your opinion, is this question, the question of the 
constitutionality of the War Powers Resolution, one that 
logically could or ever would be resolved in any Article III 
court proceeding in light of, A, the nonjusticiable political 
question doctrine and, B, immunity that might be enjoyed by one 
or more parties to any suit that might be brought?
    Mr. Koh. I think, Senator, it is a good question. I think 
it is highly unlikely that it would be justiciable. There was 
in the Vietnam era a number of famous cases, Holtzman v. 
Schlesinger, where some cases did get into court. But the 
general pattern of the case law since then has been that these 
suits have been dismissed on some preliminary ground.
    But going to the earlier point which you made, which is 
when someone is firing, when there are boots on the ground, 
does that per se rise to the level of hostilities, the 
testimony that I gave points to in prior administrations in 
situations in Lebanon, Grenada, the Persian Gulf tanker 
controversy, Bosnia, Kosovo, all were circumstances in which 
there were more casualties, more boots on the ground, many, 
many hundreds of more munitions dropped, and those were not 
deemed, under those circumstances to be hostilities. It is on 
that basis that we have come here saying that we think that 
this factual situation, unique factual situation, limited in 
these ways fits within the frame of hostilities as has been 
understood that therefore it does not trigger the 60-day limit.
    A final point, and I think it is an important one to 
emphasize. We are not here----
    Senator Lee. Actually, I know you have got a final point 
that you want to make. I do have a final question that I really 
want to ask.
    Mr. Koh. Please.
    Senator Lee. Let us assume for purposes of the discussion 
here that we are dealing with hostilities. If we were dealing 
with hostilities, if you agreed with me that we were dealing 
with hostilities, under section 41, would the President not 
have to justify, in addition to the 60-day requirement, the 
other timing-related requirements, the reporting requirements, 
consultation and so forth--wouldn't the President also have to 
articulate a military justification for our involvement in 
those hostilities based on the language of section 1541, 
meaning that they are justified either by some form of 
statutory authorization from Congress, by declaration of war, 
or by a national emergency, not just any national emergency but 
one created by an attack on the United States, on its 
territories or possessions or on its armed forces? Wouldn't 
that be the President's duty?
    Mr. Koh. Well, the President has complied with the 
reporting provisions and, in fact, past administrations have, 
by and large, responded----
    Senator Lee. Yes, sir, but I'm not talking about the 
reporting obligations. I am talking about the 1540, the 
requirement in section 1541 that recognizes that the 
constitutional power of the President, the Article 2 Commander 
in Chief power of the President as Commander in Chief to 
introduce the United States Armed Forces into hostilities, are 
exercised only pursuant to a declaration of war, statutory 
authorization, or just national security emergency created by 
an attack. That's what I'm talking about.
    Mr. Koh. Well, Senator, as you can imagine, these are 
questions that have been debated for years. That is a statement 
by the 1973 Congress about what it thinks are the limitations 
of the President's capacity to introduce forces. Take, for 
example, Professor Louis Hankin of Columbia Law School. In his 
book ``Foreign Affairs and the Constitution'' describes a range 
of military actions less than hostilities and less than war 
which have been done outside the scope of that. So the question 
has always been, is that an exhaustive list or is it not an 
exhaustive list?
    But I think the critical point here is that what we are 
arguing here simply is the provisions of the statute from our 
perspective are not triggered, therefore we don't even get to 
the question of whether the constitutionality of the statute is 
in play. We have no intention in this situation to raise that 
issue, and we are operating as a matter of good faith statutory 
interpretation based on the very unusual facts present here.
    Senator Lugar [presiding]. Thank you very much, Senator 
Lee.
    Senator Coons.
    Senator Coons. Thank you. I want to thank Chairman Kerry 
for his leadership in convening now five different hearings 
since February on the actions in Libya, and I want to thank 
Senator Lugar and others for raising, I think, critical 
questions surrounding our engagement in Libya and the questions 
that pertain to the War Powers Resolution.
    In the face of the atrocities committed by Qadhafi earlier 
this year, the United States I believe did have an obligation 
to protect the Libyan people from the very real threat of 
massacre, and I supported and applauded the passage of U.N. 
Resolution 1973 to protect Libyan civilians, and was encouraged 
by the strong international consensus surrounding this issue 
and have so far supported U.S. military engagement as one 
component of a broad multilateral commitment led by NATO.
    At the same time, I have real and growing concerns about 
the approach to the war powers issue, and in particular about 
the precedent that may be set here.
    So, Mr. Koh, it's wonderful to be with you again. I have, 
as always, found you an able and compelling advocate today. I 
am reminded of an old saw in legal practice. When the law is on 
your side, argue the law. When the facts are on your side, 
argue the facts. When neither is on your side, pound the table. 
And I note that today you've argued the facts. You have, I 
think, as ably as one possibly could, explained a very narrow 
reading of hostilities, and a number of the Senators who have 
spoken before me have reflected the fact that our constituents 
are finding very real tension between a commonsense 
understanding of hostilities and the exercise of statutory 
construction in which you are engaged, appropriately in your 
role, to define these four narrowing factors of mission, 
exposure, means, and risk of escalation.
    The only part of Senator Corker's comments to you that I 
would in any way agree with would be the concern about 
statistics and the use of a percentage justification. Other 
than that, I frankly find your focus on the unique facts of 
this current Libyan situation largely compelling, and I am 
hopeful that later today our committee will move to make 
appropriate resolution to this ongoing impasse between the 
administration and the Senate.
    You repeatedly refer to one of the good outcomes of the War 
Powers Resolution being that it promotes interbranch dialogue, 
and I suspect you've gotten a great deal of that dialogue 
today. I have a few questions I'd be interested in hearing your 
input on, understanding and respecting the difference in our 
constitutional roles.
    One would be just--and I'd urge you to answer this in the 
context of the other two. What else could we and should we have 
been doing between the branches to more effectively foster that 
dialogue? As you know through your able scholarship in this 
field, the War Powers Resolution is a rough-hewn artifact of 
its time. I have been very concerned that through a lack of 
respect and application it has drifted into near irrelevance, 
and I was encouraged to hear the chairman's comment and your 
testimony that strongly suggests that this administration 
affirms its constitutionality, its relevance going forward, and 
I hope would like to work in partnership to find ways to make 
it an effective tool of interbranch dialogue.
    So first, in your response to Senator Lugar, you said that 
drones don't get a pass under the War Powers Resolution. You 
also made, I think, telling reference to cyber warfare. The 
Department of Defense just issued a new statement on cyber 
warfare policy. Since you've obviously given great thought to 
these questions over many years, how might you suggest that we 
update the War Powers Resolution to reflect the reality of 
modern warfare, one in which many of the factors cited by your 
predecessor in your current role could not have anticipated, 
and to reflect some of the points raised by Senator Webb, ones 
in which American soldiers would not be exchanging fire, would 
not be directly at risk, where the threat of escalation might 
be quite limited but where nonetheless, not just in a 
commonsense understanding of hostilities but in a very real 
understanding of hostilities, we would be engaged in war?
    That is my main concern of the, I think, strained and 
somewhat narrow reading of hostilities that we have in front of 
us today. How would you update it to take account of these very 
modern developments in the war capabilities of our Nation?
    Mr. Koh. Thank you, Senator Coons, and I appreciate your, 
as always, thoughtful remarks.
    No. 1, obviously, if we are concerned about unmanned uses 
of weapons that can deliver huge volumes of violence, a statute 
which only deals with the introduction of U.S. Armed Forces 
does not address that situation. I don't blame anybody. At the 
time the law was passed, they were thinking about Vietnam. They 
weren't thinking about drones or cyber. So that would be one 
possibility to change the law to address realities of modern 
conflict.
    Second, the War Powers Resolution functions in a way to 
promote dialogue by a deadline. While it's unclear what 
triggers the deadline, and where the state of affairs that's 
supposed to trigger the deadline, namely hostilities, is 
deliberately vague, which puts a later Congress and President 
in a position of trying to figure out when the clock began and 
what the conditions are, and then to decide whether the urgency 
of a deadline actually promotes a dialogue.
    In a book I wrote a number of years ago, I actually 
addressed that by saying you could have a statute that directly 
requires dialogue between Congress and the executive branch, 
particularly, say, a group of senior leaders of Congress, the 
Group of 16. That was, in fact, embodied in the Byrd-Nunn-
Warner-Mitchell bill, which was discussed for a long period of 
time.
    Quite recently, a very distinguished commission led by 
former Secretary of State Jim Baker, former Secretary of State 
Warren Christopher, who then passed away, and Lee Hamilton, 
proposed another way to consider the question.
    A final point is, as much as any of you, including Senator 
Corker, I agree that this is not a mathematical calculating 
machine or a mechanical approach. It requires judgment, and 
that therefore it is important, I think, to try to get away 
from triggers that rely on false metrics toward things that 
actually reflect judgments made through interbranch dialogue. 
And I do think the process here is putting us to the question. 
If the legal issue is resolved one way or the other, the choice 
still remains what to do about the civilians in Libya.
    Did the 1973 Congress really intend that they be left 
unprotected after 60 days, or did they not think about the 
situation? This goes back to the point that I quoted from my 
own writing. The major structural flaw of the War Powers 
Resolution has been that it requires an automatic termination 
after 60 days without Congress ever making a specific judgment 
in a particular case as to whether this is a case in which 
they'd like to authorize force or like affirmatively not to 
authorize force, and you cannot run these kinds of things by 
auto-pilot. It has to be done through judgment, political 
judgment of the kind that you exercise every day.
    Senator Coons. If I might, I think that particular 
provision within the act, after just 6 months here, one that 
compels an action through the inaction of the Senate, may seem 
to have wisely reflected the inclination toward inaction rather 
than action in this particular body.
    I have one other question I'd like to get to, if I might, 
Senator, which is just on the question of expropriating funds, 
or taking funds of the regime with which we have suspended 
relations but where we haven't yet recognized the TNC. What in 
your view is the legal precedent for expropriating the funds? 
What's the foreign policy implications?
    I was struck by the fact that counsel who serves me on the 
Judiciary Committee identified a provision of the Patriot Act 
with which I was previously unfamiliar that claims it is legal 
for the United States to expropriate foreign assets if we're 
involved in armed hostilities with a foreign sovereign. And 
what, if any, tensions do you see between the definition of 
hostilities here in the War Powers Resolution and under the 
Patriot Act, and what do you think are the challenges we might 
be raising for the United States in the future given--excuse 
me, Senator--given the likelihood that we're going to proceed 
to in some ways expropriate and reallocate funds that are 
currently, at least legally, controlled by the Qadhafi regime?
    Mr. Koh. It's an excellent question, Senator. The vesting 
legislation that has been proposed is designed to address the 
question precisely because under the International Emergency 
Economic Powers Act was designed as a freeze, not seize. Were 
there congressional authorization of the action here, arguably 
you could proceed under the provision you've described for 
vesting. There's still a question under international law about 
vesting because expropriations, as you know from the Cuban 
example and others, raise questions of international challenge.
    I do think that the best approach is to enact the vesting 
legislation, which I think, instead of putting it again into a 
past historical frame, is a specific application of 
congressional judgment to deal with this situation that's 
before you now and which clearly calls for some consideration 
of how to give resources to the TNC and the people of Libya.
    Senator Coons. Thank you for your testimony today, and I 
look forward to continuing to work with you on these very 
difficult issues.
    Mr. Koh. Thank you, Senator.
    Senator Lugar. Thank you, Senator Coons.
    Senator Risch.
    Senator Risch. Thank you, Mr. Chairman.
    Mr. Koh, I've been watching the fray from afar on the TV 
broadcast, and I'm intrigued by the creative explanations that 
we've had here today.
    Let me ask you this. I want to give you a quote from then-
Senator Obama in December of 2007, and he said, ``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.''
    Now, I've heard the discussion of that. Can you give me a 
simple answer? Is that still his position?
    Mr. Koh. Well, the key word is ``military attack.'' Is that 
from the Boston Globe, Senator?
    Senator Risch. You know, this was widely disseminated at 
the time. It wasn't just one publication. It may have 
originated there; I'm not sure. But you're right, this is how 
many angels can dance on the head of a pin when you're talking 
about, well, is it military attack, is it hostilities, is it--
whatever you want to call it. But it seems to me he was pretty 
clear in this statement. Is this still his position?
    Mr. Koh. Well, Senator, as I understand it, there were a 
series of questions posed to various candidates and answered by 
their campaigns. My own view of that phrase--I was not involved 
with the campaign--is that it is an overly limited statement of 
the President's constitutional authorities. I think if instead 
of the word ``military attack'' it says ``make war,'' that 
would clearly be a correct statement of law.
    Senator Risch. Make war? Hostilities? Military attack? This 
is all the same thing, isn't it?
    Mr. Koh. No, Senator. ``Make war'' has particular meaning 
under Article 1 of the Constitution.
    Senator Risch. Are we making war on Libya?
    Mr. Koh. We are not, not for purposes of the Constitution, 
and I set that forth on page 13 of my testimony.
    Senator Risch. Is this or is this not the President's 
position at this time, this statement?
    Mr. Koh. The position of the President with regard to this 
action is set forth in my testimony in the position we're 
taking here.
    Senator Risch. Can you give me a yes or no? Is this or is 
this not the President's position at this time?
    Mr. Koh. Well, the--I didn't hear the quote clearly enough, 
so----
    Senator Risch. All right. Let me try it again. ``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 imminent threat to the 
Nation.''
    Mr. Koh. I don't think that's legally correct, and I don't 
think that's----
    Senator Risch. No, no. Mr. Koh, I'm not asking about 
legally correct. Is this or is this not the President's 
position today?
    Mr. Koh. I have not asked, but I would be very surprised if 
it's his position because I do not believe it to be legally 
correct or shared by those in the administration who are legal 
experts on this issue.
    Senator Risch. I'm not talking about that. I'm talking 
about the President of the United States. Is this or is this 
not his position today?
    Mr. Koh. I don't know, Senator Risch. I haven't asked him 
that question. I do believe that the same rules apply to 
Presidents of both parties, and I do believe that the general 
understanding of the constitutional structure would be that 
that is too limited a statement for whoever is President.
    Senator Risch. As you know, President Obama's predecessor, 
for every conflict that occurred under his watch, he came to 
Congress and asked for authorization. You're aware of that, of 
course.
    Mr. Koh. I think the President George W. Bush came with 
regard to 9/11, the authorization of use of military force with 
respect to al-Qaeda/Taliban-associated forces, and he came with 
regard to Iraq.
    Senator Risch. Notwithstanding all these other explanations 
and arguments you've made, don't you agree with me that that 
would be a really, really good idea, to come to Congress and 
ask for that authorization under the circumstances?
    Mr. Koh. My understanding, Senator, is that the 
administration has gone back to March 23, expressed that it 
would welcome the support. It has also taken the position from 
the beginning that it's acting consistently with the War Powers 
Resolution.
    I do think you are putting your finger on the important 
question, which is the debate over the law can go on forever, 
but there is an important and urgent question, which is what 
happens to the civilians of Libya, and that's a decision that 
can be made by this body, this committee, and then by the 
Senate as a whole.
    Senator Risch. Well, and of course, you know, you can go 
beyond that, too. You've talked about the citizens of Libya, 
but we've also got a really serious situation in Syria right 
now. Indeed, the Syrians aren't even armed and they're being 
attacked by their government, versus Libya, where there's 
actually armed conflict going on. You would agree with that, 
correct?
    Mr. Koh. Senator, this is an exciting time at the State 
Department. What can I say? There is only one of these 
countries with respect to which there is a U.N. Security 
Council and a NATO mission of this level of detail with this 
kind of designed roles. And so the analysis that we're 
describing applies to the Libyan situation.
    Senator Risch. And my point is it deserves a debate that 
the American people can hear. Is that fair enough?
    Mr. Koh. The more dialogue and debate on these matters of 
life and death, I think the better for all of us.
    Senator Risch. Thank you. Thank you, Mr. Chairman.
    Senator Lugar. Thank you very much, Senator Risch.
    Senator Shaheen.
    Senator Shaheen. Thank you, Mr. Chairman, and thank you to 
you and Senator Kerry for holding this hearing today.
    Mr. Koh, we appreciate your being here. I think I'm last, 
so hopefully there's not too much additional time that you'll 
be required.
    It was recently reported that the U.S. admiral in charge of 
NATO Joint Operations Command stated--and I'm not stating this 
exactly, but he essentially said that the removal of the chain 
of command was consistent with the justification to protect 
citizens. Do you believe that that statement is consistent with 
the U.N. Security Council resolution, and that NATO troops, if 
they're actively seeking to topple Qadhafi militarily, that 
that's consistent with the U.N. resolution?
    Mr. Koh. Senator, the U.N. resolution calls for the 
protection of civilians in civilian-populated areas. As I 
understand it, NATO does not target individuals. They've made 
it clear that they are not targeting individuals.
    Earlier, I think it may have been before you came in, I 
pointed out that there was a report that an admiral had made a 
comment about the real mission being to target Qadhafi. The 
admiral has on the record in a public affairs statement made it 
clear that he did not say that, and that's not, in fact, the 
rules of engagement that they're following.
    Senator Shaheen. OK. Just to follow that point a little 
further, though, how would you differentiate between degrading 
the Qadhafi regime's ability to attack civilians and actively 
targeting Qadhafi himself? Is there a line there that you can 
draw, or----
    Mr. Koh. Most of it is focused in the operational terms as 
I understand it, Senator, on the destruction of equipment, 
radar, antiaircraft. Antiaircraft can be mounted on both fixed 
and mobile devices, and that the targeting has been directed at 
that command and control.
    I note in my own testimony on footnote 5 that Qadhafi's own 
forces' rules of engagement seem to authorize them to 
indiscriminately attack civilians, and that therefore if they 
have the apparatus by which they can do that, large numbers of 
civilians would be killed and we would not be serving our 
mission, which is to protect the civilians in the civilian-
populated areas.
    But with regard to the question of targeting of leaders, I 
think the important point to emphasize from the beginning has 
been that this is a multitool operation involving diplomacy, 
development, assets freezes, and a unanimous referral of this 
to the international criminal court, and that in fact arrest 
warrants were issued yesterday.
    So as was the case with Slobodan Milosevic, a possibility 
of removal is through an international criminal trial, not 
necessarily through the tools of conflict, and that President 
Milosevic, sometime after the Kosovo episode, went to The 
Hague, where he was tried, and that is in fact where he died 
while a prisoner.
    Senator Shaheen. Thank you. I'd like to ask some questions 
now relative to the TNC, the Transitional National Council, and 
what the thinking is of the Justice Department relative to 
recognizing the TNC formally. If we were to do that, does this 
have an impact on our policy, our legal policies with respect 
to Libya; for example, how we might deal with any assets?
    Mr. Koh. Well, Senator, international law focuses on the 
question of recognition, and recognition tends to follow facts 
on the ground, particularly control over territory. As a 
general rule, we are reluctant to recognize entities that do 
not control entire countries because then they are responsible 
for parts of the country that they don't control, and we're 
reluctant to derecognize leaders who still control parts of the 
country because then you're absolving them of responsibility in 
the areas that they do control.
    So, but recognition is not the only tool. There are ways to 
acknowledge that a particular entity is the legitimate 
representative of the people, which we have done and other NATO 
partners have done, and that will obviously then go to the 
question ultimately of the extent to which the various frozen 
assets can be made available for the new Libya as opposed to 
Qadhafi's old regime and way of doing business.
    Senator Shaheen. And with respect to those frozen assets, 
how are we dealing with those assets and the TNC? Are there any 
restrictions that we've placed on whether they could be used by 
the TNC, either now or should the TNC gain control of the 
country?
    Mr. Koh. As you know, Senator, before you is vesting 
legislation, which was a particular proposal to try to address 
that question. Meanwhile, there are regular contact group 
meetings attended by the Secretary in which other countries 
have made available resources to the TNC bank accounts, et 
cetera. So the process of supporting the TNC is a long-term 
process that requires close cooperation among allies, just as 
this military mission does.
    Senator Shaheen. And the access to the bank accounts that 
you refer to, are those bank accounts that would be considered 
to be part of the frozen assets?
    Mr. Koh. Well, it's always a complicated situation when 
bank accounts are held by one regime but they appear to be for 
the purpose of a broader group of individuals. Senator Lugar 
faced this issue in the Philippines. It happens in many 
circumstances. And so exactly sorting out who is entitled to 
gain access to the frozen resources is an exercise in which 
we're actively engaged.
    Senator Shaheen. Thank you.
    The Chairman [presiding]. Thank you, Senator Shaheen.
    We are running up against a couple of time conflicts here. 
So there is going to be a vote, perhaps several votes. Some of 
them may turn into voice votes around 12:10.
    So, Legal Adviser Koh, we are going to excuse you at this 
point in time, to your chagrin and everlasting sorrow, I know. 
[Laughter.]
    And we're going to try and get both of our scholars, 
Professor Spiro and Louis Fisher, to be able to get through 
their opening testimonies, and then--and you can begin if you 
want to collect your papers, Legal Adviser, and we'll try to do 
the transition as seamlessly as we can here.
    I want to say to both of our members of Panel 2, first of 
all, I apologize on behalf of the committee for the length of 
time the first panel took. But as you both understand, this is 
obviously an important topic and we don't want to give short 
change to your testimonies.
    Therefore, what we'd like to do I think today is get your 
testimony on the record following Harold Koh. I notice one of 
you is in Philadelphia; the other is nearby. If we could and 
need to call you back in order to do this, perhaps after the 
break and finish it, leading off with your panel, we would like 
to do that, unless the Senate floor process cooperates in a way 
that lets people get back here after the vote and opening, and 
we won't know that until we know what happens on the floor.
    So if you could bear with us on that, we'd like you to come 
to the table now. And, Legal Adviser Koh, thank you for coming 
up today and being part of this discussion. It's a very 
important one. We appreciate it.
    So, Mr. Louis Fisher and Mr. Peter Spiro, if you would both 
take your places. We look forward to your testimony. As you 
know, you can place your full testimony in the record as if 
read in full and summarize. And again, very much we are 
grateful for your patience and for taking time to be with us.
    I don't know if you have an arrangement as to who is going 
to lead off, but however you want to go. Go ahead. Thanks.
    Mr. Fisher.

     STATEMENT OF LOUIS FISHER, SCHOLAR IN RESIDENCE, THE 
            CONSTITUTION PROJECT, SILVER SPRING, MD

    Mr. Fisher. Thank you very much for a very productive last 
2 hours. I learned quite a bit.
    I have a number of things I'll say to summarize my 
statement. I wanted to pick up from what Senator Lugar said 
about what the Framers were concerned about Executive wars, 
that they had an incentive and a motivation. And many people 
today think that whatever the Framers thought in the 18th 
century has no application to the 20th and 21st centuries. My 
judgment is that what the Framers were worried about, 
Executives getting into wars that were damaging to the country 
in terms of lives lost and fortunes squandered, is particularly 
relevant today after we've seen some of the wars, the very 
costly ones, Vietnam, Korea, and I think the second war in 
Iraq.
    So I think the Framers had a judgment about human nature, 
and human nature hasn't changed over that period of time. So 
I'm very much for the proposal that the decision to use 
military force against another nation that has not attacked us 
and has not threatened us is for Congress, and I'll underscore 
that.
    And I also want to say that Michael Glennon, who served 
this committee for many, many years as legal adviser, basically 
did an analysis of the war in Libya and said that the 
Constitution ``places the decision to go to war in the hands of 
Congress.'' So that's my position. And, in fact, that was the 
position from 1789 to 1950. All major wars were either declared 
by Congress or authorized by Congress, and 1950, of course, is 
when that was broken when President Truman went to war, never 
coming to Congress, against Korea. So it's a recent departure 
from the Constitution.
    I give some examples in the first part of my paper about 
Presidents not talking straight. I say, which many people may 
find offensive, Presidential double-talk, but in fact that's 
what Presidents do. As you know, Truman said it's not a war, 
it's a police action. We've seen this for many, many decades, 
Presidents not talking straight.
    One thing that was not said this morning I don't believe at 
all which concerns me is the position by the Obama 
administration that they received authorization from the U.N. 
Security Council. My position is that the Security Council 
cannot authorize any military action, cannot mandate any 
military action. If you believe that, then you would have to 
say that the U.N. Charter or Treaty transferred Article 1 power 
from Congress, not just from future Senates but from the House 
of Representatives, and gave it off to some outside body. I 
think that's an unconstitutional theme, and I don't think that 
you can get any authorization from the Security Council. So 
then you have to ask what authorization did President Obama 
have for this military activity?
    In a May 20 letter to Congress, President Obama said, ``It 
has always been my view''--this is not the Boston Globe. This 
is May 20, this year. ``It has always been my view that it is 
better to take military action, even in limited actions such as 
this, with congressional engagement, consultation and 
support.'' So that has always been his view.
    I think in February, when this began to unwind in Libya, I 
think it was his obligation in February to come to Congress and 
get that authorization.
    The second part of my paper is authorization from NATO. For 
the same reason, NATO countries, NATO allies cannot authorize 
the United States to take military action. It's the same 
problem. NATO is a treaty. Treaties cannot amend the 
Constitution, cannot take congressional power and give it to 
outside bodies.
    I think we've talked a lot here about whether Libya is a 
war and whether Libya has any hostilities. In both cases, the 
administration takes the position that if U.S. casualties are 
low, there's neither war nor hostilities, and that to me is a 
very unappealing theory because it means that if you have a 
superior force like the United States, you could pulverize a 
country, have very few or no hostilities, and there would be 
neither war nor hostilities.
    That's the position of the administration. I just think 
it's an untenable position for any administration to develop 
that. If it were, then you could have, once you get rid of your 
air defense systems on the ground in Libya, you could bomb from 
30,000 feet, you could send in drones, you could do all the 
mayhem possible, and you then say no war, no hostilities. If 
anyone did that to us, after day one there would be war and 
hostilities, which is Pearl Harbor. We didn't ask in Pearl 
Harbor whether the Japanese suffered any casualties. We knew 
from the first day that that was war.
    The last part of my paper gets into this, which is new to 
me, the nonkinetic assistance. I think there is kinetic 
assistance, and once you give a supporting role to NATO, which 
is the administration's position, you are supporting 
hostilities. I don't think you can get around that.
    The last two things, I talked about S. Res. 85. The Office 
of Legal Counsel relied on that. It took 35 seconds to support 
on the floor, and a lot of Senators objected that they did not 
know how S. Res. 85 had been modified, particularly the no-fly 
zone.
    And my last comment is again this notion of a mandate. The 
administration talks about an international mandate, talks 
about the mandate from the Arab League, mandate from the 
Security Council, et cetera. President Obama said he acted 
militarily in Libya ``with a mandate from the United Nations.'' 
To me, there is only one permitted mandate under the U.S. 
Constitution for the use of military force against another 
nation that has not attacked or threatened us, and that mandate 
must come from Congress.
    Thank you.
    [The prepared statement of Mr. Fisher follows:]

                   Prepared Statement of Louis Fisher

    Chairman Kerry, Ranking Member Lugar, and members of the committee, 
thank you for the invitation to testify on the Obama administration's 
legal and constitutional justifications for military operations in 
Libya. I start by examining four claims by the administration: (1) the 
President may obtain ``authorization'' not from Congress but from the 
U.N. Security Council, (2) the President may rely on NATO for 
additional ``authorization,'' (3) military operations in Libya do not 
amount to ``war,'' and (4) those operations do not constitute 
``hostilities'' within the meaning of the War Powers Resolution. My 
statement concludes by turning to (5) the administration's reliance on 
S. Res. 85 for legislative support, (6) references to ``non-kinetic 
assistance,'' and (7) the claim that the administration received a 
``mandate'' to act militarily from such sources as the Security 
Council, the ``Libyan people,'' and a ``broad coalition'' including the 
Arab League.
                      presidential doubletalk \1\
    Fundamental to the Constitution is the Framers' determination that 
Congress alone can initiate and authorize war. To secure the principle 
of self-government and popular sovereignty, the decision to take the 
country from a state of peace to a state of war is reserved to the 
elected Members of Congress. The Framers recognized that the President 
could exercise defensive powers ``to repel sudden attacks.'' \2\ John 
Jay expressed the Framers' intent with these words: ``It is too true, 
however disgraceful it may be to human nature, that nations in general 
will make war whenever they have a prospect of getting any thing by it; 
nay, absolute monarchs will often make war when their nations are to 
get nothing by it, but for purposes and objects merely personal, such 
as a thirst for military glory, revenge for personal affronts, 
ambition, or private compacts to aggrandize or support their particular 
families or partisans. These and a variety of other motives, which 
affect only the mind of the sovereign, often lead him to engage in wars 
not sanctified by justice or the voice and interests of his people.'' 
\3\ Professor Michael J. Glennon, who previously served this committee 
as Legal Counsel, recently underscored that the Constitution ``places 
the decision to go to war in the hands of Congress.'' \4\
---------------------------------------------------------------------------
    \1\ For readers who may regard this subhead as disrespectful of 
Presidents, doubletalk is defined as ``language that appears to be 
earnest and meaningful but in fact is a mixture of sense and nonsense; 
inflated, involved, and often deliberately ambiguous language.'' For 
Presidential deception on war powers from James Polk to the present, 
see Louis Fisher, ``When Wars Begin: Misleading Statements by 
Presidents,'' 40 Pres. Stud. Q. 171 (2010), available at http://
www.loufisher.org/docs/wi/432.pdf.
    \2\ The Records of the Federal Convention of 1787, at 318-19 (Max 
Farrand, ed. 1966).
    \3\ John Jay, Federalist No. 4, The Federalist 101 (Benjamin F. 
Wright, ed., MetroBooks 2002).
    \4\ Michael J. Glennon, ``The Cost of `Empty Words': A Comment on 
the Justice Department's Libya Opinion,'' Harv. Sec. J. Forum, April 
14, 2011, at 7, available at http://harvardnsj.com/2011/04/the-cost-of-
empty-words-a-comment-on-the-justice-departments-libya-opinion.
---------------------------------------------------------------------------
    From 1789 to 1950, all wars were either authorized or declared by 
Congress. That pattern of 160 years changed abruptly when President 
Harry Truman unilaterally took the country to war against North Korea. 
Unlike all previous Presidents, he did not go to Congress to seek 
statutory authority. He and his aides did what other Presidents have 
done to expand their control over the war power. They go to great 
lengths to explain to Congress and the public that what they are doing 
is not what they are doing. President Truman was asked at a news 
conference if the Nation was at war. He responded: ``We are not at 
war.'' A reporter inquired if it would be more correct to call the 
military operations ``a police action under the United Nations.'' 
Truman quickly agreed: ``That is exactly what it amounts to.'' \5\ 
There are many examples of Presidents and executive officials being 
duplicitous with words. A
price is paid for that conduct, both for the President and the country. 
Korea became ``Truman's War.''
---------------------------------------------------------------------------
    \5\ Public Papers of the Presidents, 1950, at 504. On July 13, at a 
news conference, President Truman again called the Korean war a 
``police action.'' Id. at 522.
---------------------------------------------------------------------------
    During Senate hearings in June 1951 on the military conflict in 
Korea, Secretary of State Dean Acheson conceded the obvious by 
admitting ``in the usual sense of the word there is a war.'' \6\ What 
sense of the word had he been using? Federal and state courts had no 
difficulty in defining the hostilities in Korea as war. They were 
tasked with interpreting insurance policies that contained the phrase 
``in time of war.'' A federal district court noted in 1953: ``We doubt 
very much if there is any question in the minds of the majority of the 
people of this country that the conflict now raging in Korea can be 
anything but war.'' \7\
---------------------------------------------------------------------------
    \6\ ``Military Situation in the Far East'' (Part 3), hearings 
before the Senate Committees on Armed Services and Foreign Relations, 
82d Cong., 1st Sess. 2014 (1951).
    \7\ Weissman v. Metropolitan Life Ins. Co., 112 F.Supp. 420, 425 
(S.D. Cal. 1953). See also Gagliomella v. Metropolitan Life Ins. Co., 
122 F.Supp. 246 (D. Mass. 1954); Carius v. New York Life Insurance Co., 
124 F.Supp. 388 (D. Ill. 1954); Western Reserve Life Ins. Co. v. 
Meadows, 261 S.W.2d 554 (Tex. 1953); and A. Kenneth Pye, ``The Legal 
Status of the Korean Hostilities,'' 45 Geo. L. J. 45 (1956).
---------------------------------------------------------------------------
    In August 1964, President Lyndon Johnson told the Nation about a 
``second attack'' in the Gulf of Tonkin, a claim that was doubted at 
the time and we now know was false.\8\ In 2005, the National Security 
Council released a study that concluded there was no second attack. 
What had been reported as a second attack consisted of late signals 
coming from the first.\9\ Johnson used stealth and deception to 
escalate the war, forever damaging his Presidency. He learned that 
being a War President is not the same as being a Great President.
---------------------------------------------------------------------------
    \8\ Louis Fisher, Presidential War Power 129-33 (2d ed. 2004).
    \9\ Robert J. Hanyok, ``Skunks, Bogies, Silent Hounds, and the 
Flying Fish: The Gulf of Tonkin Mystery, 2-4 August 1964,'' Cryptologic 
Quarterly, declassified by the National Security Agency on November 3, 
2005, available at http://www.nsa.gov/public_info/_files/
gulf_of_tonkin/articles/rel1_skunks_bogies.pdf.
---------------------------------------------------------------------------
    In 1998, during a visit to Tennessee State University, Secretary of 
State Madeleine Albright took a question from a student who wanted to 
know how President Bill Clinton could go to war against Iraq without 
obtaining authority from Congress. She explained: ``We are talking 
about using military force, but we are not talking about a war. That is 
an important distinction.'' \10\ Iraqis subjected to repeated and heavy 
bombings from U.S. cruise missiles understood the military operation as 
war. These distinctions can be easily manipulated to meet the political 
needs of the moment.
---------------------------------------------------------------------------
    \10\ Barton Gellman, ``Students Receive Albright Politely,'' 
Washington Post, February 20, 1998, at A19.
---------------------------------------------------------------------------
    The above examples provide some context for understanding the 
efforts of the Obama administration to define and redefine such words 
as ``authorization,'' ``war,'' ``hostilities,'' ``nonkinetic,'' and 
``mandate.''
             1. ``authorization'' from the security council
    President Obama and his legal advisers repeatedly state that he 
received ``authorization'' from the U.N. Security Council to conduct 
military operations in Libya. On March 21, he informed Congress that 
U.S. military forces commenced military initiatives in Libya as 
``authorized by the United Nations (U.N.) Security Council. . . .'' 
\11\ His administration regularly speaks of ``authorization'' received 
from the Security Council. As I have explained in earlier studies, it 
is legally and constitutionally impermissible to transfer the powers of 
Congress to an international (U.N.) or regional (NATO) body.\12\ The 
President and the Senate through the treaty process may not surrender 
power vested in the House of Representatives and the Senate by Article 
I. Treaties may not amend the Constitution.
---------------------------------------------------------------------------
    \11\ Text of a Letter from the President to the Speaker of the 
House of Representatives and the President Pro Tempore of the Senate, 
March 21, 2011, available at http://www.whitehouse.gov/the-press-
office/2011/03/21/letter-president-regarding-commencement-operations-
libya.
    \12\ Louis Fisher, ``Obama's U.N. Authority?'', National Law 
Journal, April 18, 2011, available at http://www.loufisher.org/docs/wp/
authority.pdf; Louis Fisher, ``Sidestepping Congress: Presidents Acting 
Under the U.N. and NATO,'' 47 Case Western Res. L. Rev. 1237 1997), 
available at http://www.loufisher.org/docs/wp/424.pdf; Louis Fisher, 
``The Korean War: On What Legal Basis Did Truman Act?'', 89 Am. J. 
Int'l L. 21 (1995), available at http://www.loufisher.org/docs/wp/
425.pdf.
---------------------------------------------------------------------------
    In a May 20 letter to Congress, President Obama spoke again about 
``authorization by the United Nations Security Council.'' He said that 
congressional action supporting the military action in Libya ``would 
underline the U.S. commitment to this remarkable international 
effort.'' Moreover, a resolution by Congress ``is also important in the 
context of our constitutional framework, as it would demonstrate a 
unity of purpose among the political branches on this important 
national security matter. It has always been my view that it is better 
to take military action, even in limited actions such as this, with 
congressional engagement, consultation, and support.'' If that has 
always been his view, it was his obligation to come to Congress in 
February to seek legislative authorization.
                     2. ``authorization'' from nato
    On March 28, in an address to the Nation, President Obama announced 
that after U.S. military operations had been carried out against Libyan 
troops and air defenses, he would ``transfer responsibilities to our 
allies and partners.'' NATO ``has taken command of the enforcement of 
the arms embargo and the no-fly zone.'' \13\ Two days earlier, State 
Department Legal Adviser Harold Koh spoke of this transfer to NATO: 
``All 28 allies have also now authorized military authorities to 
develop an operations plan for NATO to take on the broader civilian 
protection mission under Resolution 1973.'' \14\ The May 20 letter from 
President Obama to Congress explained that by April 4 ``the United 
States had transferred responsibility for the military operations in 
Libya to the North Atlantic Treaty Organization (NATO) and the U.S. 
involvement has assumed a supporting role in the coalition's efforts.''
---------------------------------------------------------------------------
    \13\ Remarks by the President in Address to the Nation on Libya, 
March 28, 2011, at 2, available at http://www.whitehouse.gov/the-press-
office/2011/03/28/remarks-president-address-nation-libya.
    \14\ Harold Hongju Koh, Legal Adviser U.S. Department of State, 
``Statement Regarding Use of Force in Libya,'' March 26, 2011, 
appearing before the American Society of International Law Annual 
Meeting, at 2, available at http://www.state.gov/s/l/releases/remarks/
159201.htm.
---------------------------------------------------------------------------
    Nothing in these or any other communications from the 
administration can identify a source of authorization from NATO for 
military operations. Like the U.N. Charter, NATO was created by treaty. 
The President and the Senate through the treaty process may not shift 
the authorizing function from Congress to outside bodies, whether the 
Security Council or NATO. Section 8 of the War Powers Resolution 
specifically states that authority to introduce U.S. Armed Forces into 
hostilities or into situations wherein involvement in hostilities is 
clearly indicated by the circumstances ``shall not be inferred . . . 
from any treaty heretofore or hereafter ratified unless such treaty is 
implemented by legislation specifically authorizing the introduction of 
United States Armed Forces into hostilities or into such situations and 
stating that it is intended to constitute specific statutory 
authorization within the meaning of this joint resolution.'' \15\ The 
authorizing body is always Congress, not the Security Council or NATO.
---------------------------------------------------------------------------
    \15\ 87 Stat. 555, 558, sec. 8(a)(2) (1973).
---------------------------------------------------------------------------
             3. military operations in libya: not a ``war''
    The Obama administration has been preoccupied with efforts to 
interpret words beyond their ordinary and plain meaning. On April 1, 
the Office of Legal Counsel reasoned that ``a planned military 
engagement that constitutes a `war' within the meaning of the 
Declaration of War Clause may require prior congressional 
authorization.'' But it decided that the existence of ``war'' is 
satisfied ``only by prolonged and substantial military engagements, 
typically involving exposure of U.S. military personnel to significant 
risk over a significant period.'' \16\ Under that analysis, OLC 
concluded that the operations in Libya did not meet the 
administration's definition of ``war.'' If U.S. casualties can be kept 
low, no matter the extent of physical destruction to another nation and 
loss of life, war to OLC would not exist within the meaning of the 
Constitution. If another nation bombed the United States without 
suffering significant casualties, would we call it war? Obviously we 
would. When Pearl Harbor was attacked on December 7, 1941, the United 
States immediately knew it was at war regardless of the extent of 
military losses by Japan.
---------------------------------------------------------------------------
    \16\ U.S. Justice Department, Office of Legal Counsel, ``Authority 
to Use Military Force in Libya,'' April 1, 2011, at 8, available at 
http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf.
---------------------------------------------------------------------------
                  4. no ``hostilities'' under the wpr
    In response to a House resolution passed on June 3, the Obama 
administration on June 15 submitted a report to Congress. A section on 
legal analysis (p. 25) determined that the word ``hostilities'' in the 
War Powers Resolution should be interpreted to mean that hostilities do 
not exist with the U.S. military effort in Libya: ``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 interpretation ignores the political context for the War 
Powers Resolution. Part of the momentum behind passage of the statute 
concerned the decision by the Nixon administration to bomb 
Cambodia.\17\ The massive air campaign did not involve ``sustained 
fighting or active exchanges of fire with hostile forces,'' the 
presence of U.S. ground troops, or substantial U.S. casualties. 
However, it was understood that the bombing constituted hostilities.
---------------------------------------------------------------------------
    \17\ Thomas F. Eagleton, War and Presidential Power: A Chronicle of 
Congressional Surrender 150-83 (1974).
---------------------------------------------------------------------------
    According to the administration's June 15 report, if the United 
States conducted military operations by bombing at 30,000 feet, 
launching Tomahawk missiles from ships in the Mediterranean, and using 
armed drones, there would be no ``hostilities'' in Libya under the 
terms of the War Powers Resolution, provided that U.S. casualties were 
minimal or nonexistent. Under the administration's June 15 report, a 
nation with superior military force could pulverize another country 
(perhaps with nuclear weapons) and there would be neither hostilities 
nor war. The administration advised Speaker John Boehner on June 15 
that ``the United States supports NATO military operations pursuant to 
UNSCR 1973. . . .'' \18\ By its own words, the Obama administration is 
supporting hostilities.
---------------------------------------------------------------------------
    \18\ Letter from the Department of State and Department of Defense 
to Speaker John A. Boehner, June 15, 2011, at 1.
---------------------------------------------------------------------------
    Although OLC in its April 1 memo supported President Obama's 
military actions in Libya, despite the lack of statutory authorization, 
it did not agree that ``hostilities'' (as used in the War Powers 
Resolution) were absent in Libya. Deprived of OLC support, President 
Obama turned to White House Counsel Robert Bauer and State Department 
Legal Adviser Harold Koh for supportive legal analysis.\19\ It would 
have been difficult for OLC to credibly offer its legal justification. 
The April 1 memo defended the ``use of force'' in Libya because 
President Obama ``could reasonably determine that such use of force was 
in the national interest.'' OLC also advised that prior congressional 
approval was not constitutionally required ``to use military force'' in 
the limited operations under consideration.\20\ The memo referred to 
the ``destruction of Libyan military assets.'' \21\
---------------------------------------------------------------------------
    \19\ Charlie Savage, ``2 Top Lawyers Lose Argument on War Power,'' 
New York Times, June 18, 2011, at A1.
    \20\ OLC Opinion, supra note 16, at 1.
    \21\ Id. at 6.
---------------------------------------------------------------------------
    It has been recently reported that the Pentagon is giving extra pay 
to U.S. troops assisting with military actions in Libya because they 
are serving in ``imminent danger.'' The Defense Department decided in 
April to pay an extra $225 a month in ``imminent danger pay'' to 
service members who fly planes over Libya or serve on ships within 110 
nautical miles of its shores. To authorize such pay, the Pentagon must 
decide that troops in those places are ``subject to the threat of 
physical harm or imminent danger because of civil insurrection, civil 
war, terrorism or wartime conditions.'' \22\ Senator Richard Durbin has 
noted that ``hostilities by remote control are still hostilities.'' The 
Obama administration chose to kill with armed drones ``what we would 
otherwise be killing with fighter planes.'' \23\
---------------------------------------------------------------------------
    \22\ David A. Fahrenthold, ``Obama's Reasoning on Libya 
Criticized,'' Washington Post, June 21, 2011, at A8.
    \23\ Id.
---------------------------------------------------------------------------
    It is interesting that various administrations, eager to press the 
limits of Presidential power, seem to understand that they may not--
legally and politically--use the words ``war'' or ``hostilities.'' 
Apparently they recognize that using words in their normal sense, 
particularly as understood by Members of Congress, Federal judges, and 
the general public, would acknowledge what the Framers believed. Other 
than repelling sudden attacks and protecting American lives overseas, 
Presidents may not take the country from a state of peace to a state or 
war without seeking and obtaining congressional authority.
                        5. nonkinetic assistance
    The Obama administration has distinguished between ``kinetic'' and 
``nonkinetic'' actions, with the latter apparently referring to no 
military force. The March 21 letter from President Obama to Congress 
spoke of clearly kinetic activities. U.S. forces had ``targeted the 
Qadhafi regime's air defense systems, command and control structures, 
and other capabilities of Qadhafi's armed forces used to attack 
civilians and civilian populated areas.'' \24\ By May 20, in a letter 
to Congress, President Obama stated: ``Since April 4, U.S. 
participation has consisted of: (1) nonkinetic support to the NATO-led 
operation. . . .'' Elements not directly using military force are 
listed: intelligence, logistical support, and search and rescue 
missions. However, the letter identified these continued applications 
of military force: ``aircraft that have assisted in the suppression and 
destruction of air defenses in support of the no-fly zone'' and ``since 
April 23, precision strikes by unmanned aerial vehicles against a 
limited set of clearly defined targets in support of the NATO-led 
coalition's efforts.'' \25\
---------------------------------------------------------------------------
    \24\ March 21, 2011, letter, supra note 11, at 2.
    \25\ President Obama's Letter About Efforts in Libya, May 20, 2011, 
sent to Senate and House leaders John A. Boehner, Nancy Pelosi, Harry 
Reid, and Mitch McConnell, at 1.
---------------------------------------------------------------------------
                       6. support from s. res. 85
    OLC in its April 1 memo relied in part on legislative support from 
the Senate: ``On March 1, 2011, the United States Senate passed by 
unanimous consent Senate Resolution 85. Among other things, the 
Resolution `strongly condemn[ed] the gross and systematic violations of 
human rights in Libya, including violent attacks on protesters 
demanding democratic reforms,' `call[ed] on Muammar Gadhafi to desist 
from further violence,' and `urge[d] the United Nations Security 
Council to take such further action as may be necessary to protect 
civilians in Libya from attack, including the possible imposition of a 
no-fly zone over Libyan territory.' '' \26\ Action by ``unanimous 
consent'' suggests strong Senate approval for the resolution, but the 
legislative record provides no support for that impression. Even if 
there were evidence of strong involvement by Senators in drafting, 
debating, and adopting this language, a resolution passed by a single 
Chamber contains no statutory support. In addition, passage of S. Res. 
85 reveals little other than marginal involvement by a few Senators.
---------------------------------------------------------------------------
    \26\ OLC Opinion, supra note 16, at 2.
---------------------------------------------------------------------------
    Resolution 7 of S. Res. 85 urged the Security Council ``to take 
such further action as may be necessary to protect civilians in Libya 
from attack, including the possible imposition of a no-fly zone over 
Libyan territory.'' When was the no-fly language added to the 
resolution? Were Senators adequately informed of this amendment? There 
is evidence that they were not. The legislative history of S. Res. 85 
is sparse. There were no hearings and no committee report. The 
resolution was not referred to a particular committee. Sponsors of the 
resolution included 10 Democrats (Bob Menendez, Frank Lautenberg, Dick 
Durbin, Kirsten Gillibrand, Bernie Sanders, Sheldon Whitehouse, Chuck 
Schumer, Bob Casey, Ron Wyden, and Benjamin Cardin) and one Republican 
(Mark Kirk).
    There was no debate on S. Res. 85. There is no evidence of any 
Senator on the floor at that time other than Senator Schumer and the 
presiding officer. Schumer asked for unanimous consent to take up the 
resolution. No one objected, possibly because there was no one present 
to object. Senate ``deliberation'' took less than a minute. When one 
watches Senate action on C-SPAN, consideration of the resolution began 
at 4:13:44 and ended at 4:14:19--after 35 seconds. On March 30, Senator 
John Ensign objected that S. Res. 85 ``received the same amount of 
consideration that a bill to name a post office has. This legislation 
was hotlined.'' \27\ That is, Senate offices were notified by automated 
phone calls and e-mails of pending action on the resolution, often late 
in the evening when few Senators are present. According to some Senate 
aides, ``almost no Members knew about the no-fly zone language'' that 
had been added to the resolution.\28\ At 4:03 pm, through the hotlined 
procedure, Senate offices received S. Res. 85 with the no-fly zone 
provision but without flagging the significant change.\29\ Senator Mike 
Lee noted: ``Clearly, the process was abused. You don't use a hotline 
to bait and switch the country into a military conflict.'' \30\ Senator 
Jeff Sessions remarked: ``I am also not happy at the way some 
resolution was passed here that seemed to have authorized force in some 
way that nobody I know of in the Senate was aware that it was in the 
resolution when it passed.'' \31\
---------------------------------------------------------------------------
    \27\ 157 Cong. Rec. S1952 (daily ed. March 30, 2011).
    \28\ Conn Carroll, ``How the Senate Was Bait and Switched Into 
War,'' http://washington
examiner-com/print/blogs/beltway-confidential/2011/04-how-senate-was-
bait-and-switched-war.
    \29\ Id.
    \30\ Id.
    \31\ 157 Cong. Rec. S2010 (daily ed. March 31, 2011).
---------------------------------------------------------------------------
            7. the ``mandate'' for military action in libya
    President Obama's speech to the Nation on March 28 stated that 
``the United States has not acted alone. Instead, we have been joined 
by a strong and growing coalition. This includes our closest allies--
nations like the United Kingdom, France, Canada, Denmark, Norway, 
Italy, Spain, Greece, and Turkey--all of whom have fought by our side 
for decades. And it includes Arab partners like Qatar and the United 
Arab Emirates, who have chosen to meet their responsibilities to defend 
the Libyan people.'' Over the month of March, ``the United States has 
worked with our international partners to mobilize a broad coalition, 
secure an international mandate to protect civilians, stop an advancing 
army, prevent a massacre, and establish a no-fly zone with our allies 
and partners.'' \32\ Missing from this coalition and mandate was the 
institution of Congress. President Obama in this speech spoke of ``a 
plea for help from the Libyan people themselves.'' \33\ He offered his 
support ``for a set of universal rights, including the freedom for 
people to express themselves'' and for governments ``that are 
ultimately responsive to the aspirations of the people.'' \34\ Yet 
throughout this period there had been no effort by the President or his 
administration to listen to the American people or secure their 
support.
---------------------------------------------------------------------------
    \32\ Remarks by the President in Address to the Nation on Libya, 
March 28, 2011, at 2, supra note 13.
    \33\ Id. at 3.
    \34\ 34 Id. at 4.
---------------------------------------------------------------------------
    On May 20, in a letter to Congress, President Obama said that he 
acted militarily against Libya ``pursuant to a request from the Arab 
League and authorization by the United Nations Security Council.'' The 
administration's June 15 submission to Congress claims that President 
Obama acted militarily in Libya ``with a mandate from the United 
Nations.'' There is only one permitted mandate under the U.S. 
Constitution for the use of military force against another nation that 
has not attacked or threatened the United States. That mandate must 
come from Congress.
    Senate Joint Resolution 20, introduced on June 21, is designed to 
authorize the use of U.S. armed force in Libya. In two places the 
resolution uses the word ``mandate.'' Security Council Resolution 1970 
``mandates international economic sanctions and an arms embargo.'' 
Security Council Resolution 1973 ``mandates `all necessary measures' to 
protect civilians in Libya, implement a `no-fly zone', and enforce an 
arms embargo against the Qaddafi regime.'' The Security Council cannot 
mandate, order, or command the United States. Under the U.S. 
Constitution, mandates come from laws enacted by Congress.

    The Chairman. Thank you very much, Mr. Fisher, a very 
effective summary. Thank you.
    Mr. Spiro.

 STATEMENT OF PETER SPIRO, CHARLES R. WEINER PROFESSOR OF LAW, 
   TEMPLE UNIVERSITY, BEASLEY SCHOOL OF LAW, PHILADELPHIA, PA

    Mr. Spiro. Thank you, Mr. Chairman. Good afternoon to you, 
Senator Lugar, and members of the committee. Thank you for the 
opportunity to testify before you today on the issue of Libya 
and war powers.
    In my view, U.S. participation in the Libya operation has 
been lawful. The President had constitutional authority to 
initiate U.S. participation in this operation without advanced 
congressional authorization.
    That participation continues to be lawful. The 
administration's interpretation of hostilities under the War 
Powers Resolution is a plausible one, although not free from 
doubt. I understand concerns on the part of Members of Congress 
with respect to this interpretation.
    Congressional participation in war powers decisionmaking is 
important to the successful execution of our national foreign 
relations. However, in my view, the War Powers Resolution does 
not supply a useful vehicle for facilitating interbranch 
cooperation.
    The Chairman. Mr. Spiro, if I could just interrupt you, I 
apologize. The vote started. I'm going to go over there and try 
to get them to prolong it a little bit so that you can finish 
your testimony, and Senator Lugar will have time, and Senator 
Shaheen, to get over. I'll try to back it up. I appreciate it.
    I did have some questions. I want to follow up, obviously. 
So they will certainly be part of the record, and we'll make a 
decision on when we'll be able to reconvene. I thank you.
    Mr. Spiro. Should I continue, Senator? Yes.
    The War Powers Resolution does not supply a useful vehicle 
for facilitating interbranch cooperation. Congress and the 
President should leave aside their differences on the War 
Powers Resolution and work toward mutually acceptable terms for 
continued United States participation in the Libya operation.
    For all its notoriety, the War Powers Resolution has had 
little effect on war powers practice. The operative core of the 
resolution is the 60-day termination provision of section 5(b). 
The most notable episode implicating the 60-day clock was 
President Clinton's participation in the NATO bombing campaign 
in Kosovo. Participation in that operation continued more than 
60 days after its initiation, notwithstanding the lack of 
specific statutory authorization.
    The Clinton administration asserted that congressional 
funding for the operation satisfied the requirements of the War 
Powers Resolution. This was a questionable argument on its own 
terms, but Congress and other actors accepted the continuation 
of the bombing past the 60-day window.
    In the absence of specific appropriations for the Libya 
operation, President Obama lacks that sort of argument. 
Instead, the administration argues that participation in the 
Libya operation does not rise to the level of ``hostilities'' 
for purposes of the act and the section 5(b) trigger.
    I have three observations with respect to this question. 
First, and here I echo the Legal Adviser, plain language 
approaches to textural meanings seem particularly inappropriate 
in the context of war powers. As with parallel constitutional 
understandings, statutory measures relating to national 
security and military force are likely to be interpreted in 
light of practice and historical precedent, as much as through 
language.
    Second, practice relating to the War Powers Act renders the 
administration's interpretation a plausible one. As the Legal 
Adviser has detailed for you this morning, there are historical 
precedents suggesting a narrower interpretation of hostilities 
than might be expected from an everyday understanding of the 
term.
    Third, that is not to say that the administration's 
position is necessarily the better one. Members of this 
committee and the Senate as a whole do not have to accept that 
position. The contrary position is also reasonable. There is 
insufficient practice and other evidence definitively to 
resolve the question either way as applied to the Libya 
operation. Congress could make clear through a formal 
institutional pronouncement that it rejects the 
administration's interpretation of hostilities.
    But finally, it is not clear how pressing the hostilities 
question serves the institutional self-interest of the 
legislative branch. On the one hand, I believe that any 
President faced with the winding down of the 60-day clock would 
identify some justification for avoiding the terms of section 
5(b). No responsible chief executive would terminate a military 
operation deemed in the national interest in the face of 
congressional inaction.
    If not authorization gleaned from a funding measure, if not 
an argument relating to the definition of hostilities, then 
some other avenue would present itself to evade the termination 
provision. Section 5(b) is unlikely ever to be given effect, 
nor will the judiciary ever enforce it.
    Does this mean that section 5(b) is unconstitutional? That 
may be a question better left to the court of history. 
Presidents have good cause to avoid constitutional showdowns 
where more minimalist arguments will serve the same ends. It is 
my understanding that the administration has not affirmed the 
constitutionality of the War Powers Resolution. It's been quite 
careful, in fact, not to concede the question.
    On the other hand, Congress has no real need of the section 
5(b) provision or the rest of the War Powers Act for that 
matter. Congress has ample tools with which to control 
Presidential deployments of U.S. Armed Forces. In any event, 
devising a position of the Congress with respect to the 
operation in Libya should be the primary task at hand. Disputes 
relating to the War Powers Resolution are likely to distract 
from that undertaking. The persistent cloud over the act 
underlines the perception among some that Congress is ill-
equipped in this realm. Congress would be better served by 
focusing on other institutional tools for participating in the 
full spectrum of military deployment and use of force 
decisions.
    Thank you, Mr. Ranking Member.
    [The prepared statement of Mr. Spiro follows:]

                  Prepared Statement of Peter J. Spiro

    Good morning, Mr. Chairman, Senator Lugar, and members of the 
committee. Thank you for the opportunity to testify before you today on 
the issue of Libya and war powers.
    For the record, I am the Charles Weiner Professor of Law at Temple 
University Law School, where I teach subjects relating to international 
and constitutional law. From 2004-2006, I was Rusk Professor of 
International Law at the University of Georgia Law School. I am a 
former law clerk to Judge Stephen F. Williams on the U.S. Court of 
Appeals for the D.C. Circuit and to Justice David H. Souter of the 
Supreme Court of the United States. I have also served as an Attorney-
Adviser in the Office of the Legal Adviser, U.S. Department of State, 
as well as Director for Democracy on the staff of the National Security 
Council. I am currently a member of the Advisory Committee on 
Historical Diplomatic Documentation, U.S. Department of State. Among 
other subjects, I have published widely on matters relating to foreign 
affairs and the Constitution.
    In my view, U.S. participation in NATO operations in Libya has been 
lawful. The President had constitutional authority to initiate U.S. 
participation in these operations without advance congressional 
authorization. That participation continues to be lawful. The 
administration's interpretation of ``hostilities'' under the War Powers 
Resolution is a plausible one, although not free from doubt. I 
understand concerns on the part of members of Congress with respect to 
this interpretation. In my view, however, it is not clear that the 
definition of ``hostilities''--which becomes operable only through the 
contested 60-day termination provision of section 5(b)--meaningfully 
bears on the legality of the U.S. participation in the NATO campaign.
    The legality of the Libya operation in the absence of congressional 
authorization is not to diminish the importance of congressional 
participation in war powers decisionmaking. Nor does it mean that war 
powers comprises a constitutional black hole. The rule of law is a 
central feature of our system for addressing questions relating to the 
use of force. There are important respects in which congressional 
participation is constitutionally demanded. However, I do not believe 
that the War Powers Resolution affects the constitutional balance of 
powers with respect to the use of force. WPR-related disputes such as 
the one you are considering today distract from key decisions on which 
the collective judgment of the executive and legislative branches 
remains essential. Congress and the President should leave aside their 
differences on the War Powers Resolution and work toward mutually 
acceptable terms for continued U.S. participation in NATO operations in 
Libya.
                       constitutional parameters
    The constitutional division of war powers cannot be measured with 
calipers. The courts have largely absented themselves from matters 
implicating war powers. Judicial nonparticipation makes sense as a 
matter of institutional capacity. It does, however, lead to a paucity 
of authoritative pronouncements on the division of war powers. Against 
this landscape, historical practice supplies the precedents that guide 
our contemporary understandings of war powers. As Justice Frankfurter 
famously observed in the Steel Seizure case, these precedents add to 
the written Constitution ``a gloss which life has written upon them.''
    While not unchanging, historical practice relating to war powers 
has proved remarkably consistent. This practice can be reduced to three 
basic principles.
    1. For major engagements, the President must as a constitutional 
matter secure congressional authorization in advance. This explains why 
both George W. Bush and George H.W. Bush sought congressional 
authorization before initiating military action in Kuwait and Iraq. 
This was not simply a matter of politics; it was a matter of 
constitutional necessity. Where the use of U.S. Armed Forces is likely 
to implicate a major commitment of resources over an extended period of 
time with a risk of substantial casualties, our constitutional system 
demands the prior assent of the legislative branch.
    2. For less significant engagements, on the other hand, the 
President is constitutionally empowered to deploy U.S. forces without 
congressional authorization. On numerous occasions throughout U.S. 
history, Presidents have undertaken deployments involving the use or 
potential use of force without congressional approval. From recent 
decades, we have examples including Kosovo, Bosnia, Haiti, Panama, the 
so-called Tanker war of the mid-1980s, the 1986 bombing of Tripoli, 
Lebanon, and Grenada, among others. This practice is consistent and has 
been engaged in with the knowledge and acquiescence of the legislative 
branch. It establishes a clear constitutional standard with respect to 
the division of war power. This standard reflects the imperatives of 
the use of force against the landscape of foreign relations and the 
national interest: the need for dispatch and flexibility that conforms 
to the institutional capacities of the Presidency.
    The practice supports the constitutionality of President Obama's 
decision to participate in the Libya operation without advance 
congressional authorization. Because the operation is limited in 
nature, scope, and duration, it fits comfortably within the practice 
relating to the use of force short of ``real war.'' In my view, the 
opinion of the Office Legal Counsel of April 1, 2011, on this question 
is persuasive. This conclusion is confirmed by the lack of any 
persistent institutional opposition to the initial decision.
    The distinction between major and lesser engagements also explains 
why comparisons between the approaches of Presidents Bush and Obama to 
Iraq and Libya respectively are misplaced. The two episodes are 
constitutional apples and oranges. Iraq involved a massive commitment 
of resources, with grave risks to U.S. Armed Forces. Though hardly 
trivial, Libya lies toward the other end of the constitutional 
spectrum. The distinction is material for constitutional purposes.
    3. Finally, Congress has the power to terminate or condition 
particular military engagements through engagement-specific, 
affirmative legislation. This power is exercised subject to the 
President's exclusive authorities as Commander in Chief over military 
decisionmaking, reasonably conceived. Joint resolutions respecting U.S. 
deployments in Lebanon and Somalia supply recent historical examples in 
which Congress imposed temporal limitations on the use of U.S. Armed 
Forces. Congress could impose such limitations with respect to the 
Libya operation. Congress also has the power to issue institutional 
pronouncements through nonbinding pronouncements. These institutional 
statements are of constitutional consequence. For instance, the formal 
condemnation by the House of Representatives of President Polk's 
initiation of the conflict with Mexico in 1848 evidenced its rejection 
of the constitutionality of that engagement.
    As in any area of constitutional law, but especially in the absence 
of judicial decisions, these categories supply only an outline of the 
law. The boundaries of these categories are unstable and subject to 
revision and evolution, especially in the face of changing background 
conditions. However, there is a remarkable consistency to the practice. 
This consistency suggests workability. The consistency also suggests an 
acceptance of the practice as legitimate by all relevant constitutional 
actors, the Congress and President centered among them.
                       the war powers resolution
    For all its notoriety, the War Powers Resolution has had little 
effect on war powers practice. From appearances, the act has marked the 
front lines of contests between Congress and the President over war 
powers. In reality, disputes relating to the War Powers Resolution are 
better characterized as skirmishes. The act has not materially affected 
the terms of continuing struggles between the executive and legislative 
branches relating to war powers.
    Nor should it. The act reflected the moment of its creation in 
1973, an anomalous one marking a nadir in congressional-executive 
relations. The act has changed Presidential behavior in only one 
notable respect, through the reporting requirement of section 4. It is 
now a routine and accepted practice for Presidents to report uses of 
force as well as substantial combat deployments to the congressional 
leadership. This requirement is unexceptional and advances important 
transparency values. In section 3, the act also codifies a historical 
tradition of consultation by the President with Congress in all 
possible instances.
    But in other respects, the act has proved unable to shift 
constitutional understandings as developed through the practice.
    This works in both directions. By its terms, the act ostensibly 
gives the President a 60-day window in which to undertake any use of 
force, regardless of magnitude, without congressional authorization. 
Both George H.W. Bush and George W. Bush could have, consistent with 
the War Powers Resolution, undertaken major military engagements 
against Iraq without prior congressional authorization. And yet the 
failure to secure advance congressional authorization in those cases 
would have violated prevailing constitutional standards. The War Powers 
Resolution, in other words, cannot validate what would otherwise 
constitute Presidential overreaching.
    On the other side, the act has not subtracted from Presidential 
powers. In its policy statement, for instance, the act fails to 
recognize the protection of U.S. citizens as a justification for the 
use of military force. That has not stopped Presidents from justifying 
military engagements on that basis, consistent with longstanding 
practice. Nor have subsequent Congresses rejected that justification.
    The 60-day termination provision of section 5(b) comprises the 
act's most controversial provision. It has been accepted as 
constitutional only by President Carter (and then only in passing, in a 
single paragraph of an OLC opinion). Section 5(b) was tested by 
President Clinton in the context of the 1992-93 Somalia deployment. On 
only one occasion has Congress acted to authorize a deployment on its 
understanding of a section 5(b) deadline, with respect to the 1982-83 
Lebanon peacekeeping deployment.
    The most notable episode implicating the 60-day clock was President 
Clinton's participation in the NATO bombing campaign in Kosovo. 
Participation in that operation, as with the Libya operation, continued 
more than 60 days after its initiation in the absence of specific 
statutory authorization. In that case the Office of Legal Counsel 
asserted that congressional funding for the operation satisfied the 
requirements of the War Powers Resolution, notwithstanding the section 
8(a) requirement that authorization not be inferred from 
appropriations. This was a questionable argument on its own terms. It 
was a central objective of the War Powers Resolution to end 
authorization through appropriations measures, on the theory that 
Congress would never cut off the funding of U.S. troops in the field. 
Bills to extend specific authorization for the Kosovo operation 
consistent with section 8(a) failed to pass. In the end Congress and 
other actors accepted the continuation of the bombing past the 60-day 
window.
    That was as it should have been. I will not rehearse here at length 
the structural arguments against the termination provision of section 
5(b). Suffice it to say that inaction may not equate with disapproval, 
as demonstrated by contradictory actions on Congress' part during the 
Kosovo operation (and in the House last week with respect to Libya). 
Military decisionmaking should not be driven on a prospective basis by 
legislative default devices. The stakes are too high to be governed by 
the dead hand of legislation enacted to address the difficulties of 
another era.
    ``Hostilities'' Under the War Powers Resolution
    In the absence of funding specific to the Libya operation, 
President Obama lacks the sort of argument that President Clinton made 
with respect to the Kosovo campaign. Instead, the administration argues 
that the participation in the Libya operation does not rise to the 
level of ``hostilities'' for purposes of the act and the section 5(b) 
trigger. I have three observations with respect to this question.
    First, plain language approaches to textual meanings seem 
particularly inappropriate in the context of war powers. In parallel to 
the evolution of constitutional understandings, statutory measures 
relating to national security and military force are likely to be 
interpreted in light of practice and historical precedent as much as 
through language. The War Powers Resolution should not be addressed in 
the way one would address the tax code.
    Second, practice relating to the War Powers Act renders the 
administration's interpretation a plausible one. As the Legal Adviser 
has detailed for you this morning, there are historical precedents 
suggesting a narrower interpretation of the term ``hostilities'' than 
might be expected from an everyday understanding of the term. (It is 
unfortunate that this full explanation has waited until today, however, 
to the extent that others have been able to fill an explanatory 
vacuum.)
    Third, that is not to say that the administration's position is 
necessarily the better one. Members of this committee and the Senate as 
a whole do not have to accept that position. The contrary position is 
also reasonable. There is insufficient practice and other evidence 
definitively to resolve the question either way as applied to the 
particulars of U.S. participation in NATO operations in Libya. To the 
extent that Congress makes clear, through a formal institutional 
pronouncement (as opposed to isolated statements of particular 
members), that it rejects the administration's interpretation of 
``hostilities,'' then the case will stand at best as a contested 
precedent, one to be resolved, perhaps, in future episodes.
    But, finally, it is not clear how pressing the ``hostilities'' 
question buys Congress anything as an institution. In my view, it is 
not obviously in Congress' institutional self-interest to press the 
point. On the one hand, I believe that any President faced with the 
winding down of the 60-day clock would identify some justification for 
avoiding the terms of section 5(b). No responsible Chief Executive 
would terminate a military operation in the national interest in the 
face of congressional inaction. If not authorization gleaned from a 
funding measure, if not an argument relating to ``hostilities,'' then 
some other avenue would present itself to evade the termination 
provision. Section 5(b) is unlikely ever to be given effect. Nor will 
the judiciary ever enforce it.
    Call it death by a thousand cuts. Does this mean that section 5(b) 
is unconstitutional? That question may better be left to the court of 
history. Although Presidents may not declare the act unconstitutional, 
from the Reagan administration onward they have been careful not to 
concede the point. They have good cause to avoid the distraction of 
constitutional confrontation where a more minimalist argument will 
serve the same end.
    On the other hand, Congress has no real need of the provision, lack 
of respect for which reflects poorly on the institution. Congress has 
ample tools with which to control Presidential deployments of U.S. 
Armed Forces. As the nature of military engagement migrates away from 
the use of ground forces, at least in limited conflicts, Congress will 
be able to use the appropriation mechanism with less fear of leaving 
U.S. forces in harm's way. The nature of these engagements, often in 
the name of the international community, will also give Congress more 
latitude to constrain Presidential action. In coming years we may well 
witness a trend toward greater congressional participation in decisions 
relating to the use of U.S. Armed Forces.
    In any event, devising a position of the Congress with respect to 
the operation in Libya should be the primary task at hand. Disputes 
relating to the War Powers Resolution are likely to distract from that 
undertaking. I believe we would be having the same sort of discussion 
today even if the War Powers Resolution had not been enacted. The 
persistent cloud over the act underlines the perception of some that 
Congress is ill-equipped in this realm. Congress would be better served 
by focusing on other institutional tools for participating in the full 
spectrum of use-of-force decisions.
    Thank you, Mr. Chairman, for the opportunity to present my views to 
you on this important subject. This is a critical juncture in the 
history of constitutional war powers. It is important that the Senate 
give these questions its closest consideration.

    Senator Lugar [presiding]. Well, on behalf of the 
committee, I thank both of you for very important testimony, 
both your written testimony as well as these oral presentations 
this morning. I appreciate so much hearing both of you, and we 
will study carefully your papers.
    The hearing is adjourned.
    [Whereupon, at 12:18 p.m., the hearing was adjourned.]

              Additional Material Submitted for the Record


    Responses of Legal Adviser Harold Koh to Questions Submitted by
                        Senator Richard G. Lugar

    Question. In a 1980 opinion regarding the War Powers Resolution, 
the Justice Department's Office of Legal Counsel wrote the following:

          We believe that Congress may, as a general constitutional 
        matter, place a 60-day limit on the use of our Armed Forces as 
        required by the provisions of Sec. 1544(b) of the resolution. 
        The resolution gives the President the flexibility to extend 
        that deadline for up to 30 days in cases of ``unavoidable 
        military necessity.''
          This flexibility is, we believe, sufficient under any 
        scenarios we can hypothesize to preserve his constitutional 
        function as Commander in Chief. The practical effect of the 60-
        day limit is to shift the burden to the President to convince 
        the Congress of the continuing need for the use of our Armed 
        Forces abroad.
          We cannot say that placing that burden on the President 
        unconstitutionally intrudes upon his executive powers.

    Does this opinion continue to reflect the views of the executive 
branch with regard to the constitutionality of section 1544 (b) of the 
War Powers Resolution? If not, please indicate in what respects the 
views of the executive branch on this question have changed.

    Answer. Yes, the opinion continues to reflect the views of the 
executive branch.

    Question. The 1973 House committee report on the bill that became 
the War Powers Resolution states that, in the resolution's text, ``the 
word `hostilities' was substituted for the phrase `armed conflict' 
during the subcommittee drafting process because it was considered to 
be somewhat broader in scope.''

   Does the administration believe that U.S. forces are engaged 
        in armed conflict in Libya?

    Answer. For purposes of international law, U.S. and NATO forces are 
engaged in an armed conflict in Libya. We are committed to complying 
with the laws of armed conflict, and we hold other belligerents in the 
conflict, including the Qadhafi regime, to the same standards. With 
regard to the language quoted from the House report, as I noted in my 
testimony, the report and the statute do not specifically define the 
term ``hostilities.'' My testimony cited other legislative history that 
reflects that, in the words of Senate sponsor Jacob Javits, Congress 
chose a term that ``accepts a whole body of experience and precedent 
without endeavoring specifically to define it.'' As a matter of 
established practice, ``hostilities'' determinations under the War 
Powers Resolution have been understood as requiring a factual inquiry 
into the circumstances and conditions of the military action in 
question, and particularly the expected dangers that confront U.S. 
forces. For the reasons set forth in my testimony, the administration 
believes that the United States supporting role in NATO Operation 
Unified Protector--which is limited in the nature of the mission, 
limited in the risk of exposure to United States Armed Forces, limited 
in the risk of escalation, and limited in the choice of military 
means--has not constituted the kind of ``hostilities'' envisioned by 
the resolution's 60-day pullout rule. This is a distinct inquiry from 
the legal tests for determining what constitutes an ``armed conflict'' 
under international law.
    Moreover, as I explained in my testimony, the definition of 
``hostilities'' that we have used in this instance is consistent with 
the definition that one of my predecessors, Monroe Leigh, offered to 
Congress on behalf of the executive branch in 1975. The discussion 
between our two branches of government regarding the meaning of 
``hostilities'' has been ongoing, but throughout, the Executive has not 
departed significantly from the understanding we supplied at that time.

    Question. Among the assistance U.S. forces are providing to enable 
NATO airstrikes in Libya are electronic warfare support, aerial 
refueling, and intelligence, surveillance and reconnaissance support.

   If U.S. forces encountered persons providing assistance of 
        this sort to Taliban or al-Qaeda forces in Afghanistan, would 
        the administration consider that such persons were directly 
        participating in hostilities against the United States under 
        the laws of armed conflict?

    Answer. The laws of war provide that civilians, who as such are 
generally immune from attack in an armed conflict, can be targeted if 
and for such time as they take a direct part in hostilities. The 
precise contours of the concept of ``direct participation in 
hostilities''--reflected in Common Article 3 of the 1949 Geneva 
Conventions, Article 51 of Additional Protocol I of 1977, and Article 
13 of Additional Protocol II of 1977--remain subject to considerable 
debate, and specific determinations as to when an individual is taking 
a direct part in hostilities are highly fact-dependent. This 
international law of war concept has not, however, generally been 
applied to determine whether U.S. forces are engaged in 
``hostilities,'' as a matter of domestic law, for purposes of the War 
Powers Resolution.

    Question. At the outset of the Libya operations, the Department of 
Justice opined that the operations were anticipated to be limited in 
their ``nature, scope, and duration.'' On this basis, it concluded that 
the President did not require prior congressional authorization to 
initiate them.
    As I indicated in my opening statement, 3 months into our military 
involvement in Libya, the administration's assurances about the limited 
nature of the involvement 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.
    Is it still the administration's view that the Libya operations are 
limited in their nature, scope, and duration? If so, please identify

   The specific limits that apply to the nature of U.S. 
        military operations in Libya;
   The specific limits that apply to the scope of U.S. military 
        operations in Libya, and
   The specific limits that apply to the duration of U.S. 
        military operations in Libya.

    Answer. It remains the administration's view that the Libya 
operations are limited in their nature, scope, and duration, such that 
prior congressional authorization was not constitutionally required for 
the President to direct this military action. These same limitations 
inform our analysis of the War Powers Resolution: As my testimony 
explained in detail, the combination of four limitations--the limited 
nature of (1) our military mission (playing a supporting role in a 
NATO-led coalition to enforce a United Nations Security Council 
Resolution that authorizes Member States to engage in civilian 
protection); (2) the exposure to our Armed Forces (who have not to date 
suffered casualties or been engaged in active exchanges of fire); (3) 
the risk of escalation (which is reduced by the absence of U.S. ground 
troops or regional opposition and by the existence of U.N. 
authorization, among other factors); and (4) the military means we have 
been using (confined to a discrete set of military tools, most of them 
nonkinetic)--all contributed to the President's determination that the 
60-day pullout rule does not apply. The administration will continue to 
monitor the nature of U.S. involvement in the NATO operation to 
determine whether any further steps within the War Powers Resolution 
framework would be appropriate.

    Question. Some have suggested that if the administration were to 
acknowledge that the War Powers Resolution's definition of 
``hostilities'' includes strikes by [unmanned] drones, the President 
would be constrained in his ability to carry out such strikes against 
members of al-Qaeda, including in Somalia.

   Does the administration believe that the post-September 11 
        Authorization for the Use of Military Force (Pub. Law 107-40) 
        provides congressional authorization for the use of force, 
        including strikes by unarmed drones, against members of al-
        Qaeda in whatever foreign country they may be located?

    Answer. Following the horrific attacks of 9/11, the United States 
has been in an armed conflict with al-Qaeda and associated forces. As a 
matter of domestic law, Congress authorized the use of all necessary 
and appropriate force against al-Qaeda, the Taliban, and associated 
forces in the 2001 Authorization for Use of Military Force. As I stated 
in a speech that I gave before the American Society of International 
Law on March 25, 2010, ``whether a particular individual will be 
targeted in a particular location will depend upon considerations 
specific to each case, including those related to the imminence of the 
threat, the sovereignty of the other states involved, and the 
willingness and ability of those states to suppress the threat the 
target poses.'' See http://www.state.gov/s/l/releases/remarks/
139119.htm. The choice of weaponry in a particular use of force is 
subject to a number of considerations; and in all cases, this 
administration reviews the rules governing targeting operations to 
ensure that U.S. operations are conducted consistent with law of war 
principles, including the principles of distinction and 
proportionality.

    Question. Section 2(b) of Public Law 107-40 states ``Consistent 
with section 8(a)(1) of the War Powers Resolution, the Congress 
declares that this section is intended to constitute specific statutory 
authorization within the meaning of section 5(b) of the War Powers 
Resolution.'' In light of this provision, does the administration 
believe there is any doubt that applicable requirements under the War 
Powers Resolution for congressional authorization have been satisfied 
with respect to the use of military force, including strikes by 
[unmanned] drones, against members of al-Qaeda?

    Answer. The Administration does not believe there is any doubt that 
the 2001 congressional authorization for the Use of Military Force 
against al-Qaeda and associated forces authorizes all necessary and 
appropriate military force including the use of drones against members 
of al-Qaeda, consistent with the laws of armed conflict, and that such 
authorization is sufficient for purposes of the War Powers Resolution.

    Question. In a March 26 statement addressing the President's 
authority to initiate military operations in Libya, you stated that the 
Senate had passed a resolution, S. Res. 85, calling for a no-fly zone 
in Libya. The relevant language in the resolution ``urge[d] the United 
Nations Security Council to take such further action as may be 
necessary to protect civilians in Libya from attack, including the 
possible imposition of a no-fly zone over Libyan territory.''
    Some have read your statement to suggest that the administration 
believes that S. Res. 85 authorized the President to use military force 
in Libya. This would be a puzzling interpretation given that the 
language in question was addressed to the U.N. Security Council, not 
the President, that it made no mention of any use of military force by 
the United States, and that it was contained in a nonbinding resolution 
of the Senate rather than a law enacted with the approval of the full 
Congress.

   To avoid further confusion on this point, is it the 
        administration's position that S. Res. 85 provided the 
        President legal authorization to use force in Libya?

    Answer. I believed on March 26, as I do now, that S. Res. 85 was a 
significant measure, inasmuch as it reflected the Senate's unanimous 
recognition of the seriousness of the situation in Libya and of the 
potential value of establishing a no-fly zone, which the United States 
then helped to do. But it is not the administration's position--and I 
have never suggested--that S. Res. 85 provided the President legal 
authorization to use force in Libya.

    Question. Do you believe the President has been well served by not 
seeking congressional authorization for the Libya operations? What 
advantages do you perceive the President to have gained by proceeding 
without congressional authorization?

    Answer. While the President has concluded that congressional 
authorization was not legally required for U.S. participation in the 
Libya operations as they have progressed to date, he has also made 
clear that he would welcome such authorization, as it would present the 
world with a unified position of the U.S. Government, strengthen our 
ability to shape the course of events in Libya, and dispel any 
lingering legal concerns. More specifically, the President has 
expressed his strong support for S.J. Res. 20, as introduced by 
Chairman Kerry and 10 original cosponsors on June 21. He has also 
sought to ensure that the administration consult with Congress 
extensively throughout the operation.

    Question. On March 11, 2011, I wrote to Secretary Clinton to seek 
answers to questions about the administration's March 7 statement with 
regard to Article 75 of Additional Protocol I of the Geneva Conventions 
of 1949. That statement indicated that ``The U.S. Government will . . . 
choose out of a sense of legal obligation to treat the principles set 
forth in Article 75 as applicable to any individual it detains in an 
international armed conflict, and expects all other nations to adhere 
to these principles as well.''
    On May 18, 2011, I received a letter signed by the Acting Assistant 
Secretary of State for Legislative Affairs purporting to respond to my 
questions. The information contained with this letter was not 
responsive to my questions.
    Please respond to the following questions with regard to the 
administration's March 7 statement:

   a. The statement indicates that the U.S. Government will 
        ``choose out of a sense of legal obligation'' to treat the 
        principles set forth in Article 75 as applicable in specified 
        circumstances. (emphasis added) Please describe the source of 
        the legal obligation referred to in the statement and the 
        considerations that led the administration to conclude that 
        such a legal obligation exists.
   b. The statement indicates that the United States will treat 
        the principles set forth in Article 75 as applicable ``to any 
        individual it detains in an international armed conflict.'' 
        (emphasis added) Does the administration regard these 
        principles also to apply to noninternational armed conflicts, 
        including the current armed conflict with al-Qaeda? If not, 
        which of the considerations that led the administration to 
        conclude that a legal obligation exists to apply Article 75 
        principles in international armed conflicts does the 
        administration believe are inapplicable to noninternational 
        armed conflicts?
   c. Please explain the administration's understanding of the 
        effect of the statement as a matter of international law, 
        including any international legal obligations that may arise as 
        a result of the statement.
   d. Please explain the administration's understanding of the 
        effect of the statement as a matter of U.S. law.

    Answer. The administration's statement of March 7, 2011, resulted 
from a comprehensive interagency review, including the Departments of 
Defense, Justice, and State, of current U.S. law and military practice. 
The statement also reflects the longstanding view of the United States 
that Article 75 contains fundamental guarantees of humane treatment 
(e.g., prohibitions against torture) to which all persons in the power 
of a party to an international armed conflict are entitled. In 1987, 
President Reagan informed the Senate that although the United States 
had serious concerns with Additional Protocol I, ``this agreement has 
certain meritorious elements . . . that could be of real humanitarian 
benefit if generally observed by parties to international armed 
conflicts.'' For this reason, he noted, the United States was in the 
process of developing appropriate methods for ``incorporating these 
positive provisions into the rules that govern our military operations, 
and as customary international law.'' As a general matter, the 
executive branch previously has taken the position that certain norms, 
including those reflected in treaties to which the United States is not 
a party (e.g., the Law of the Sea Convention, the Vienna Convention on 
the Law of Treaties), constitute customary international law.

    a. The administration determined that existing U.S. treaty 
obligations, domestic law, and regulations related to the treatment of 
detainees in armed conflict substantially overlap with the obligations 
that Article 75 imposes on States Party to Additional Protocol I. 
Examples of where many of the provisions of Article 75 are already 
reflected in existing U.S. law and regulations include: Common Article 
3 of the 1949 Geneva Conventions; the 1949 Geneva Convention Relative 
to the Treatment of Prisoners of War; the 1949 Geneva Convention 
Relative to the Protection of Civilian Persons in Time of War; the War 
Crimes Act of 1996, as amended; the Detainee Treatment Act of 2005; the 
Military Commissions Act of 2009; the Uniform Code of Military Justice; 
DOD Directive 2310.01E (``The Department of Defense Detainee 
Program''); and Army Regulation 190-8 (``Enemy Prisoners of War, 
Retained Personnel, Civilian Internees and Other Detainees''). 
Consistent with this set of existing and overlapping requirements in 
U.S. law, the administration also determined that current U.S. military 
practices are fully consistent with the requirements of Article 75. 
Accordingly, the administration considered it appropriate to state that 
the United States will choose to abide by the principles set forth in 
Article 75 applicable to detainees in international armed conflicts out 
of a sense of legal obligation, and that we would expect other states 
to do the same.

    b. Following our March 7 statement, there was some speculation as 
to why we referred to the application of Article 75 specifically in the 
context of ``international armed conflict.'' The simple explanation is 
that Article 75 of Additional Protocol I, like all of Additional 
Protocol I, is intended by its terms to be applied to international 
armed conflict. Our statement should not be taken to suggest that 
similar protections should not apply in noninternational armed 
conflict. It only reflects the fact that corresponding protections with 
respect to noninternational armed conflict are memorialized elsewhere--
in particular, in Common Article 3 of the 1949 Geneva Conventions and 
Articles 4 through 6 of Additional Protocol II, both of which apply to 
noninternational armed conflicts.
    Although the United States is not yet party to Additional Protocol 
II, as part of the review process described above, the administration, 
including the Departments of State, Defense, and Justice, also reviewed 
its current practices with respect to Additional Protocol II, and found 
them to be fully consistent with those provisions, subject to 
reservations, understandings, and declarations that were submitted to 
the Senate in 1987, along with refinements and additions that we will 
submit. Accordingly, on March 7, 2011, the administration also 
announced its intent to seek Senate advice and consent to ratification 
of Additional Protocol II as soon as practicable. We believe that 
ratification of Additional Protocol II will be an important complement 
to the step we have taken with respect to Article 75. We look forward 
to working with you, as ranking member of the Senate Foreign Relations 
Committee, on this most important matter.

    c. As a matter of international law, the administration's statement 
is likely to be received as a statement of the U.S. Government's opinio 
juris as well as a reaffirmation of U.S. practice in this area. The 
statement is therefore also likely to be received as a significant 
contribution to the crystallization of the principles contained in 
Article 75 as rules of customary international law applicable in 
international armed conflict.
    Determining that a principle has become customary international law 
requires a rigorous legal analysis to determine whether such principle 
is supported by a general and consistent practice of states followed by 
them from a sense of legal obligation. Although there is no precise 
formula to indicate how widespread a practice must be, one frequently 
used standard is that state practice must be extensive and virtually 
uniform, including among States particularly involved in the relevant 
activity (i.e., specially affected States). The U.S. statement, coupled 
with a sufficient density of State practice and opinio juris, would 
contribute to creation of the principles reflected in Article 75 as 
rules of customary international law, which all States would be 
obligated to apply in international armed conflict. (The 168 States 
that are party to Protocol I are of course already required to comply 
with Article 75 as a matter of treaty law.)

    e. As discussed above, the administration's statement followed from 
a determination that existing U.S. law and regulations impose 
requirements on U.S. officials that substantially overlap with the 
requirements of Article 75. The statement does not alter those 
statutory and regulatory requirements. If Article 75 were determined to 
be customary international law, it would have the same effect on U.S. 
law as other customary international legal norms. The United States has 
long recognized customary international law, whether reflected in 
treaty provisions or otherwise, as U.S. law (see, e.g., the Supreme 
Court's discussion of customary international law in The Paquete Habana 
175 U.S. 677 (1900)).
                                 ______
                                 

    Responses of Legal Adviser Harold Koh to Questions Submitted by
                         Senator James E. Risch

    Question. Were U.S. actions during Operation Odyssey Dawn 
considered ``hostilities'' under your definition?

    Answer. During the initial phase of the Libya operation, under 
Operation Odyssey Dawn, our military actions in Libya were 
significantly more intensive, sustained, and dangerous than they have 
been since the handover to NATO's Operation Unified Protector. Had 
Odyssey Dawn lasted for more than 60 days, it may well have constituted 
``hostilities'' under the War Powers Resolution's pullout provision.

    Question. Were any actions the United States took during Operation 
Unified Protector considered ``hostilities'' under your definition?

    Answer. For the reasons set forth in my testimony, the 
administration believes that the United States constrained, supporting 
role in Operation Unified Protectora--which is limited in the nature of 
the mission, limited in the risk of exposure to U.S. Armed Forces, 
limited in the risk of escalation, and limited in the choice of 
military means--has not constituted the kind of ``hostilities'' 
envisioned by the War Powers Resolution's 60-day pullout rule.

    Question. You testified that ``no casualties, no threat of 
casualties, no significant engagement'' of the U.S. military affirms 
your opinion that U.S. actions in Libya do not amount to 
``hostilities'' envisioned by the War Powers Resolution. This position 
implies a threshold for a conflict to qualify as ``hostilities'' as 
contemplated by the War Powers Resolution. Please define that 
threshold?

   You referenced in your testimony that the United States has 
        dropped a limited number of munitions during strike missions, 
        does your threshold of ``hostilities'' take into consideration 
        the improved lethality of the individual ordinance used?
   Does the amount of damage inflicted by U.S. forces matter in 
        this equation?
   Does the size of the force (manpower) trigger the invocation 
        of the term ``hostilities''?

    Answer. My testimony explained the administration's position as to 
why the United States current military operations in Libya--which are 
limited in the nature of the mission, limited in the risk of exposure 
to United States Armed Forces, limited in the risk of escalation, and 
limited in the choice of military means--do not fall within the War 
Powers Resolution's automatic 60-day pullout rule. My testimony further 
explained that Congress in 1973 did not attempt to define a rigid 
threshold for ``hostilities'' to be applied mechanically to all 
situations. Nevertheless, our analysis does take into consideration the 
lethality of ordnance used, the damage inflicted by U.S. forces, and 
the size of the U.S. force, as reflected in its discussion of three 
factors: the military means, the nature of the mission, and the risk of 
escalation. As I explained during my testimony, if any of the critical 
facts regarding the underlying mission were substantially different, it 
might warrant reaching a different conclusion regarding the existence 
of ``hostilities.''

    Question. You testified that we were not ``carpet bombing'' Libya 
and that the current number of drone strikes were insignificant to the 
threshold of ``hostilities.'' Beyond what you see as these clear lanes, 
what is the amount of force necessary to trigger the resolution's 60-
day pullout requirement?

    Answer. With regard to drones, I stated unambiguously in my oral 
testimony that they do not get a ``free pass'' under the War Powers 
Resolution. The resolution, which by its terms focuses on the 
``introduction of United States Armed Forces'' into ``hostilities,'' 
was not designed with unmanned aerial vehicles in mind, but that does 
not mean that drone strikes are insignificant to the threshold of 
hostilities, or that they can never trigger the 60-day rule. To the 
contrary, both the number and nature of U.S. drone strikes are 
significant to the ``hostilities'' determination, although in the 
abstract, it is difficult to state precisely what level of U.S. kinetic 
force, standing alone, would be sufficient to trigger the pullout 
provision in any given situation. Taking into account all of the 
factors in the current Libya operation that are identified in my 
testimony, the current use of drones in itself does not, in the 
administration's view, compel the conclusion that the resolution's 
automatic pullout provision is triggered.

    Question. You testified that the conflict has presented new 
military technology that was not envisioned by the drafters of the 
original bill. However, aerial refueling, ISR, and support flights are 
not new elements of conflict and were in use, in various forms, when 
the War Powers Resolution was debated and enacted in 1973. The War 
Powers Resolution specifically allows for an exception for activities 
supporting the command structure of organizations like NATO, but the 
activities listed above were not exempted out of the resolution's 
application. Doesn't the use of nonexempted forces mean, by 
implication, that the military is involved in hostilities outside of 
the exempted forces?

    Answer. I believe this question refers to sections 8(b) and 8(c) of 
the War Powers Resolution. As explained in footnote 13 of my testimony, 
sections 8(b) and 8(c) do not imply that all NATO activities in which 
the United States participates, no matter how modestly, must be 
subjected in their entirety to the 60-day clock. Those provisions set 
out certain parameters for when U.S. participation in the military 
activities of foreign forces would come within the ambit of the 
resolution. While the United States participation in this NATO 
operation is not exempted from the requirements of the resolution, my 
point in that footnote was that the U.S. forces in Libya--not the whole 
of NATO forces--are the proper subject for the ``hostilities'' analysis 
required by the resolution's language. I agree that support activities 
such as aerial refueling and ISR were known to the drafters of the War 
Powers Resolution, but I have not seen evidence to suggest that such 
nonkinetic activities would trigger the 60-day clock in the context of 
a NATO operation such as this.

    Question. Before the Libyan conflict began, U.S. military personnel 
serving on ships within 110 nautical miles of Libyan shores did not 
receive Hostile Fire and Imminent Danger pay for reasons linked to 
Libya. Today they do. So, too, do U.S. Air Force pilots flying sorties 
over Libya. If, in fact, the U.S. military is not engaged in 
``hostilities,'' what is the administration's legal reason for giving 
$225 per month in extra pay to U.S. forces assisting with military 
actions associated with Operation Odyssey Dawn and Operation Unified 
Protector?

    Answer. As I explained in footnote 14 of my written testimony, the 
executive branch has long understood its application of the ``danger 
pay'' statute to be distinct from its application of the War Powers 
Resolution. Similar danger pay is being given to U.S. forces in 
Burundi, Greece, Haiti, Indonesia, Jordan, Montenegro, Saudi Arabia, 
Turkey, and many other countries in which no one is seriously 
contending that ``hostilities'' are occurring for purposes of the War 
Powers Resolution.

    Question. On what day did you reach your final conclusion that the 
United States was no longer engaged in ``hostilities''? When was it 
adopted by the President as the position of the administration?

    Answer. As you can understand, I cannot comment on the internal 
decisionmaking procedures of the President and the administration with 
respect to legal matters. However, it is a matter of public record, as 
Chairman Kerry noted in the hearing, that from the beginning of the 
Libya operation the administration stated that it intended to act 
consistently with the War Powers Resolution and has maintained that 
position throughout the operation.

    Question. Would you consider the bombing (attempted or actual) of a 
U.S. embassy by another nation-state ``a national emergency created by 
attack upon the United States, its territories or possessions, or its 
armed forces'' under the war powers act?

    Answer. Yes, I believe that an attempted or actual bombing of a 
United States embassy certainly could rise to that level, although no 
such event has occurred in Libya. I note, however, that the ``national 
emergency'' standard articulated in section 2(c) of the War Powers 
Resolution is not linked, either textually or logically, to the 
separate question of whether U.S. forces are in a situation of 
``hostilities'' under sections 4(a)(1) and 5(b) of the resolution. By 
its plain terms, section 2(c) is also precatory in nature, and it has 
never been treated by the executive branch as having binding legal 
force.

    Question. Does President Obama ignoring the War Powers Resolution 
simply add to the history of ``a consistent pattern of executive 
circumvention of legislative constraint in foreign affairs,'' as you 
observed on page 38 of your book, ``The National Security 
Constitution''?

    Answer. I do not accept the premise that ``President Obama [is] 
ignoring the War Powers Resolution'' or otherwise trying to circumvent 
the legislative branch. To the contrary, as my testimony explained, 
throughout the Libya operation, the President has never claimed the 
authority to take the nation to war without congressional 
authorization, to violate the War Powers Resolution or any other 
statute, to violate international law, to use force abroad when doing 
so would not serve important national interests, or to refuse to 
consult with Congress on important war powers issues. The 
administration recognizes that Congress has powers to regulate and 
terminate uses of force, and that the War Powers Resolution plays an 
important role in promoting interbranch dialogue and deliberation on 
these critical matters. The President has expressed his strong desire 
for congressional support, and has made clear his commitment to acting 
consistently with the resolution. Of critical importance in an area 
where the law is unsettled, he has done so transparently and in a 
manner that allows Congress to respond if it disagrees with his reading 
of the resolution.

    Question. Previous administrations have used an interagency process 
led by the Department of Justice's Office of Legal Counsel (OLC) to 
receive credible and objective legal advice, particularly regarding 
constitutional matters. During this process, OLC seeks input from 
multiple agencies before arriving at a conclusion. In order to justify 
continuing kinetic operations in Libya without congressional 
authorization, it appears President Obama decided truncate this process 
and associate himself with your legal opinion. Why did the 
administration choose this course of action? What precedent is he 
setting regarding the Executive's process for attaining credible and 
objective legal advice?

    Answer. As I explained during my testimony, I cannot comment on the 
internal decisionmaking procedures of the President or the 
administration. No one disputes two basic facts here--that President 
Obama made this decision, and that in the end it was the President's 
decision to make.

    Question. During your nomination hearing in April 2009, you 
testified before this committee that, because the U.N. ``soundly 
defeated'' a resolution calling NATO's action in Kosovo unlawful that 
was a de facto authorization of the NATO mission.\1\ Last week, the 
House of Representatives soundly rejected authorizing the President's 
use of force in Libya. Under your legal reasoning, shouldn't Congress's 
rejection of force also imply the President has no authority to be in 
Libya?
---------------------------------------------------------------------------
    \1\ Senator Jim DeMint, Question for the Record #10, April 28, 
2009.

    Answer. No. To date, Congress has not acted in a way that would 
amount to ``rejection of force'' in Libya. Nor has Congress acted 
either to authorize or deauthorize the Libya operation. While the 
President has taken the position that congressional authorization was 
not legally required for the Libya operation as it has progressed thus 
far, he has also made clear that he would welcome such authorization. 
At my nomination hearing, I cited the overwhelming Security Council 
vote rejecting a resolution that would have deemed the use of force in 
Kosovo unlawful as one piece of evidence, among others, that the Kosovo 
intervention enjoyed international support--as the Libya operation 
clearly does by virtue of U.N. Security Council Resolution 1973 and the 
support of NATO, the Arab League, and the Gulf Cooperation Council, as 
well as Libya's own Transitional National Council. The House of 
Representatives' vote against a particular resolution authorizing the 
President to use force in Libya does not imply that the President lacks 
---------------------------------------------------------------------------
the domestic legal authority to be in Libya.

    Question. In response to questions in your nomination hearing, you 
criticized the Bush administration for not seeking a new U.N. 
resolution specifically authorizing the use of force in Iraq. You 
stated that ``I believe that one consequence of this lack of consensus 
as to whether the resolutions provided the necessary support was that 
it hindered U.S. efforts to attract as broad political support for our 
military actions in Iraq as we would have liked.'' \2\
---------------------------------------------------------------------------
    \2\ Senator Jim DeMint, Question for the Record #7, April 28, 2009.

   Do you believe broad international support is sufficient to 
        justify U.S. engagement in Libya?
   Even if, as you argue, congressional authorization is not 
        necessary, is it not prudent for the President to seek 
        congressional authorization in order to ensure ``broad 
        political support'' from the American people?

    Answer. As my testimony made clear, I do not believe that broad 
international support is alone sufficient to justify the legality of 
our engagement in Libya, although the nature and degree of 
international support might bear on factors that are relevant to the 
War Powers analysis in this case, such as the limited object and scope 
of our military mission and the limited risk of escalation. While the 
President has concluded that congressional authorization was not 
legally required for the Libya operation as it has progressed to date, 
he has also made clear that he would welcome such authorization, as it 
would present the world with a unified position of the U.S. Government, 
strengthen our ability to shape the course of events in Libya, and 
dispel any lingering legal concerns. More specifically, the President 
has expressed his strong support for S.J. Res. 20, as introduced by 
Chairman Kerry and 10 original cosponsors on June 21. He has also 
sought to ensure that the administration consult with Congress 
extensively throughout the operation.

    Question. Referring to President Bush and the prospect for war with 
Iran, on December 4, 2007, then-Senator Joe Biden said, ``the President 
has no constitutional authority to take this Nation to war against a 
country of 70 million people, unless we're attacked or unless there is 
proof that we are about to be attacked. And if he does--if he does--I 
would move to impeach him. The House obviously has to do that, but I 
would lead an effort to impeach him.'' \3\ Do you agree that it is an 
impeachable offense for the President to use force without prior 
congressional authorization unless we are attacked or under imminent 
threat of attack, as then-Senator Biden asserted in his statement?
---------------------------------------------------------------------------
    \3\ Senator Joseph R. Biden Interviewed on MSNBC by Chris Matthews, 
Dec. 4, 2007, 2007, transcript accessed at http://www.msnbc.msn.com/id/
22114621/ns/msnbc_tv-hardball_with_
chris_matthews/.

    Answer. I believe that the question of an ``impeachable offense'' 
is highly fact-dependent and cannot be answered in such a general 
fashion. I would simply emphasize that both Republican and Democratic 
administrations have consistently taken the position over the past 
several decades that the President has constitutional authority to 
direct certain uses of force abroad to protect important national 
interests without prior congressional authorization, even in the 
absence of an attack or an imminent threat of attack.
```