A State Department lawyer arrived on Capitol Hill Tuesday with two difficult tasks: Convince a Senate committee that the Obama administration didn’t need Congress’s approval for its military operations in Libya.
Then: Convince the Senate to give Obama that approval anyway.
He didn’t seem to make a lot of headway on either front.
Facing the Senate Foreign Relations Committee, legal adviser Harold Hongju Koh laid out a flurry of legal arguments to justify the campaign. He did not, at least initially, seem to win over several skeptical senators on the panel.
“I think you’ve undermined the credibility of this administration. I think you’ve undermined the integrity of the War Powers act,” said Sen. Bob Corker (R-Tenn.). “You’ve done a great disservice to our country.”
Koh told the committee that while the law says presidents must obtain congressional authorization before sending troops into hostilities overseas, what’s happening in Libya doesn’t constitute hostilities.
And what if legislators don’t agree? In that case, Koh said, they should still support the campaign, because to do otherwise would help Libyan leader Moammar Gaddafi.
“We can all agree it would only serve Gaddafi’s interests” if Congress forced U.S. forces to withdraw, he said.
The hearing followed a long-running pattern in the White House’s handling of the Libyan conflict. Whenever it has tried to pacify unhappy members of Congress, the Obama administration has usually had the opposite effect.
On Tuesday, senators said that the White House had declined to send lawyers from the Pentagon and the Department of Justice, agencies that that had reportedly disagreed with Obama’s decision on Libya.
Instead, it sent Koh, who had reportedly agreed with the president.
“Are you glad that you basically created an issue where no issue had to exist?” Corker asked Koh when his testimony was finished. “Basically sticking a stick in the eye of Congress?”
“If you felt that a stick was stuck, that was not the goal,” Koh said. He conceded, however, that “this controversy has probably not played out as some would have expected.”
Tuesday marked the first time that an administration official has appeared in a formal hearing to defend Obama’s finding that the Libyan operation does not constitute “hostilities.” That finding — designed to exempt the Libyan operation from the 1973 War Powers Resolution — has only inflamed anger on Capitol Hill.
Last week, the GOP-led House voted down a measure that would have authorized the campaign, in a gesture of pique at Obama.
Later Tuesday, the Foreign Relations Committee will hear from independent legal experts and then consider a resolution from Sens. John F. Kerry (D-Mass. ) and John McCain (R-Ariz.) to authorize limited conflict in Libya.
In his testimony, Koh told the panel that the White House would like this authorization but doesn’t need it. His argument focused on the word “hostilities.”
The Libyan conflict does not meet that definition, he said. That’s because U.S. forces play only a limited role in the NATO-led operation, and because there is little danger to them from the battered Libyan forces. While U.S. troops are mainly in supporting roles such as intelligence-gathering and aerial refueling, there have been strikes on ground targets by American planes and unmanned drones.
“Hostilities is an ambiguous term of art,” Koh said. In the absence of a formal legal definition, he said, Obama had decided it did not apply in Libya.
That argument seemed acceptable to Kerry, the committee’s chairman. “In Libya today, no American is being shot at. No American troops are on the ground, and we’re not going to put them there,” he said. Sen. Christopher A. Coons (D-Del.) said that Koh’s argument was “largely compelling.”
But other senators on the committee were dubious.
Sen. Richard G. Lugar (R-Ind.) called the argument an “incredible assertion.” Sen. James Webb (D-Va.) said it was a “contorted legal definition.” Sen. Mike Lee (R-Utah) echoed others in his concern about the precedent of letting presidents begin military operations without congressional approval by asserting that the other side wouldn’t shoot back effectively
“It seems to be hard to say that doesn’t involve hostilities,” Lee said.
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