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68–241 PDF 2011

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/ 

COMMITTEE ON FOREIGN RELATIONS

JOHN F. KERRY, Massachusetts, Chairman

BARBARA BOXER, California 

ROBERT MENENDEZ, New Jersey 

BENJAMIN L. CARDIN, Maryland 

ROBERT P. CASEY, JR., Pennsylvania 

JIM WEBB, Virginia 

JEANNE SHAHEEN, New Hampshire 

CHRISTOPHER A. COONS, Delaware 

RICHARD J. DURBIN, Illinois 

TOM UDALL, New Mexico 

RICHARD G. LUGAR, Indiana 

BOB CORKER, Tennessee 

JAMES E. RISCH, Idaho 

MARCO RUBIO, Florida 

JAMES M. INHOFE, Oklahoma 

JIM DEMINT, South Carolina 

JOHNNY ISAKSON, Georgia 

JOHN BARRASSO, Wyoming 

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)

(1) 

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 

2 

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. 

3 

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. 

4 

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 

5 

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 

6 

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 

7 

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. 

8 

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 

9 

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. 

10 

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? 

11 

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 LeighHoffmann 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’’). 2For explanation of the lawfulness of our Libya actions under international law, see Koh, 

supra note 1. 3S.J. Res. 20 (introduced by Senators Kerry, McCain, Levin, Kyl, Durbin, Feinstein, Graham, 

Lieberman, Blunt, Cardin, and Kirk). 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). 5Qadhafi’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 

Continued 

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

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. 

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 

12 

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.’’ 

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. 

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 inVerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z
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6When 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’’). 7 1975 Leigh-Hoffmann Letter, supra note 1, at 38. 

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 

Continued 

volvement 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. 

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. 

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 

14 

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. 

10The 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)). 12Letter 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). 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. 

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 

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

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 susVerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z
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14The 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). 16The 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.’’). 18 John Hart Ely ‘‘War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath’’ 50 (1993). 19For 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. 

tained 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

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

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 PowVerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z
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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). 22See ‘‘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. 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.’’ 

ers] 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 

21⁄2 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. 

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

17 

24Office 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). 

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. 

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. 

18 

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. 

19 

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 

20 

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. 

21 

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. 

22 

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. 

23 

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 

24 

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 

25 

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 

26 

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 

27 

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 

28 

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 41⁄2 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? 

29 

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 

30 

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. 

31 

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 InterVerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z
32 

national 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— 

33 

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. 

34 

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? 

35 

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 

36 

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 thenSenator 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 

37 

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 

38 

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 

39 

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 

40 

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. 

41 

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 

42 

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. 

43 

1For 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. 2The 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). 

4Michael 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. 5Public 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. 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). 7Weissman 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). 8Louis 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/publiclinfo/lfiles/gulflofltonkin/articles/rel1lskunkslbogies.pdf. 

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

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.’’ 

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

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 

44 

10 Barton Gellman, ‘‘Students Receive Albright Politely,’’ Washington Post, February 20, 1998, 

at A19. 11Text 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. 12Louis 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. 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-nationlibya. 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. 

the war, forever damaging his Presidency. He learned that being a War President 

is not the same as being a Great President. 

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. 

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. 

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.’’ 

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 

45 

15 87 Stat. 555, 558, sec. 8(a)(2) (1973). 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-inlibya.pdf. 17Thomas F. Eagleton, War and Presidential Power: A Chronicle of Congressional Surrender 

150–83 (1974). 18Letter from the Department of State and Department of Defense to Speaker John A. 

Boehner, June 15, 2011, at 1. 

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. 

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. 

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. 

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. 

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 

46 

19 Charlie Savage, ‘‘2 Top Lawyers Lose Argument on War Power,’’ New York Times, June 18, 

2011, at A1. 20OLC Opinion, supra note 16, at 1. 21 Id. at 6. 22David A. Fahrenthold, ‘‘Obama’s Reasoning on Libya Criticized,’’ Washington Post, June 21, 

2011, at A8. 23 Id. 24March 21, 2011, letter, supra note 11, at 2. 25President 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. 26OLC Opinion, supra note 16, at 2. 

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

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

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

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. 

47 

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). 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. 

In addition, passage of S. Res. 85 reveals little other than marginal involvement by 

a few Senators. 

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

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. 

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. 

48 

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 

49 

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 

50 

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 

51 

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 vioVerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z
52 

lated 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 

53 

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-offorce 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 § 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. 

54 

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. 

55 

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 alQaeda? 

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. 

56 

• 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. 

57 

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 

58 

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 refuelVerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z
59 

ing, 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 

60 

1Senator Jim DeMint, Question for the Record #10, April 28, 2009. 

2Senator Jim DeMint, Question for the Record #7, April 28, 2009. 

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? 

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

• 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 

61 

3Senator Joseph R. Biden Interviewed on MSNBC by Chris Matthews, Dec. 4, 2007, 2007, 

transcript accessed at http://www.msnbc.msn.com/id/22114621/ns/msnbcltv-hardballlwithl 

chrislmatthews/. 

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? 

Answer. I believe that the question of an ‘‘impeachable offense’’ is highly factdependent 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. 

Æ