US State Department (DOS) [official website] legal adviser Harold Koh [academic profile] on Tuesday told the Senate Foreign Relations Committee (SFRC) [official website] that President Barack Obama is acting within the law [testimony materials] with respect to US military operations in Libya [JURIST backgrounder]. Koh testified that Obama's conduct is consistent with the Constitution, the 1973 War Powers Resolution [50 USC § 1541 et seq.] and international law. Specifically, Koh provided four factors suggesting the current situation in Libya does not amount to a "hostility" requiring Congressional authorization or automatic withdrawal after 60 days pursuant to the War Powers Resolution. First, the mission is limited in that US forces are merely providing support in the civilian protection operation, even though NATO [official website] forces are engaging in more aggressive military conduct in Libya. Second, US presence in Libya has not resulted in significant US casualties, indicating that the confrontations are not hostile. The operation appears to lack the risk of escalation, as prolonged combat is unlikely and geographical scope is narrow. Finally, Koh pointed out that US presence in Libya is far from "full military engagement." Koh asked the committee to approve a bipartisan resolution [SJ RES 20] to provide express Congressional authorization for continued operations in Libya.
The US House of Representatives [official website] in two votes last week sent contradictory messages [JURIST report] over authorization of US military operations in Libya, voting down 123-295 [roll call vote] a resolution [HJ RES 68] that would have authorized further operations in Libya, and later voting down 180-238 [roll call vote] a measure [HR 2278] that would have defunded the operations, save for rescue and intelligence efforts to assist NATO. Obama disagrees with certain members of Congress regarding his legal authority to continue military operations in Libya. Obama's position is that he is not in violation [JURIST report] of the War Powers Resolution. His office maintains that US activities in Libya do not amount to "hostilities" because the US is only playing a supporting role in the NATO-led mission pursuant to and limited by the UN Security Council Resolution authorizing military action in Libya to protect civilians. But earlier this week, it was reported that Obama came to this conclusion overriding the legal interpretations [JURIST report] of the Department of Defense (DOD) and the Department of Justice Office of Legal Counsel [official websites]. Jordan Paust [academic profile] of the University of Houston Law Center has argued [JURIST op-ed] that Obama is not violating the War Powers Resolution because the resolution was meant to limit only his authority as Commander-In-Chief. In this case, Obama is acting pursuant to his Executive authority under Article II [text]. Paust argues: "given the fact that treaties of the United States (such as the UN Charter) are supreme federal laws, it is evident that the President has constitutionally-based authority to faithfully execute US competencies under the Charter outside of the President's independent authority as Commander-in-Chief."