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JURIST - Feature: US Involvement and the War Powers Resolution
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US Involvement and the War Powers Resolution

The US military was in strategic command of the international effort in Libya at first, with the launch of Operation Odyssey Dawn on March 19, 2011. Operation Odyssey Dawn officially ended on March 31, with the US handing over control of the effort to NATO. According to opponents of US involvement in the Libya conflict, the launch of these operations activated the War Powers Resolution, which limits the ability of the president to continue military operations without the authorization of Congress.

Congress passed the War Powers Resolution, codified at 50 USC § 1541 et seq., in 1973 over the veto of President Richard Nixon. The resolution requires the president to notify Congress within 48 hours of committing US armed forces to military action, and provides that armed forces must be withdrawn from the conflict after 60 days, followed by a 30 day withdrawal period, absent congressional authorization for continued hostilities. JURIST Contributing Editor Michael Kelly has explained the functioning of this resolution in the context of Libya in more detail.

Despite informing Congress of the military action, President Barack Obama did not receive congressional authorization for continued involvement in the conflict, and argued that authorization was not necessary due to the limited role US forces were playing in the international military operation. Within a week of the initiation of hostilities against Gaddafi's forces in Libya, US Representative Justin Amash (R-MI) introduced legislation requiring the immediate halt of US military action. Citing Article I, Section 8 of the Constitution, Amash argued that the bill would "enforce the constitutional requirement that Congress approve of an offensive military operation."

On June 15, 2011, several members of Congress filed a lawsuit in the US District Court for the District of Columbia against President Obama for allegedly circumventing congressional authority by increasing military strikes against Libya. The lawsuit argued that President Obama's actions violated Article I, Section 8, which grants Congress the power to declare war, in addition to violating the War Powers Resolution. The suit came shortly after House Speaker John Boehner (R-OH) sent a letter to President Obama warning that he would be in violation of the War Powers Resolution on June 19 and demanding an explanation for continued operations. The lawsuit was later dismissed due to lack of standing.

Following this, and the passage of a resolution by the House calling for withdrawal of forces deployed without congressional approval, President Obama released a report to Congress attempting to explain the continued air strikes in Libya. The report, United States Activities in Libya, argued that the US military was merely providing support as is required by several international treaties and did not have enough participation in the conflict to activate the War Powers Resolution. JURIST Contributing Editor Jordan Paust advanced this argument, stating that President Obama was not bound by the resolution due to his constitutional authority and international obligations. The report explained:

The President is of the view that the current US military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because US military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision. US forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. US operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of US ground troops, US casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.
According to a report by The New York Times, this rationale for continued military action divided the Obama administration, with Pentagon general counsel Jeh Johnson and Caroline Krass, the acting head of the Office of Legal Counsel, telling President Obama that they believed that US activities in Libya constituted "hostilities," and White House counsel Robert Bauer and State Department legal advisor Harold Koh arguing that US activities did not amount to "hostilities." A week later, the US House of Representatives rejected a resolution that would have provided congressional approval, but also rejected a resolution that would have defunded the military effort.

Koh later testified that President Obama's conduct was in compliance with the Constitution, the War Powers Resolution and international law before the Senate Foreign Relations Committee. Specifically, Koh provided four factors suggesting the situation in Libya did not amount to a "hostility" under the resolution. First, the mission was limited in that US forces were merely providing support in the civilian protection operation, even though NATO forces are engaging in more aggressive military conduct in Libya. Second, the US presence in Libya had not resulted in significant US casualties, indicating that the confrontations were not hostile. He argued that the operation appeared to lack the risk of escalation, as prolonged combat was unlikely and geographical scope was narrow. Finally, Koh pointed out that US presence in Libya was far from "full military engagement." The House later voted to restrict funding for military operations in Libya, but voted down a measure to entirely defund it.

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