The expected showdown between the president and Congress over the War Powers Act took a strange and exotic turn on Wednesday when the administration claimed that it was not engaged in a war in Libya, and had not been involved in hostilities since April 7.
The State Department’s legal advisor, Harold Koh, claimed in an interview with the New York Times that “the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”
Koh was careful not to anger Congress any further:
“We are not saying the president can take the country into war on his own,” Mr. Koh said. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress.”
It may be too late. A bi-partisan group of House members led by Reps. Dennis Kucinich (D-OH) and Walter Jones (R-NC) has filed suit in federal court claiming the administration is in violation of the War Powers Act. Kucinich said: “With regard to the war in Libya, we believe that the law was violated. We have asked the courts to move to protect the American people from the results of these illegal policies”
Speaker John Boehner didn’t go that far, but still registered his disgust with the administration’s non-cooperation in explaining the U.S. mission in Libya by sending a letter to the White House on Tuesday calling on the president to “faithfully comply with the War Powers Resolution and the requests made by the House of Representatives, and that you will use your unique authority as our President to engage the American people regarding our mission in Libya.”
On June 4th, the House requested that the administration answer 21 questions in a resolution on Libya that sought clarification on the war, “including its goals and objectives, costs and justification for not seeking congressional authorization.” The measure included a deadline of 14 days for the president to respond.
In his Tuesday letter to the White House, Boehner told the president that he was out of time:
“Given the mission you have ordered to the U.S. Armed Forces with respect to Libya and the text of the War Powers Resolution, the House is left to conclude that you have made one of two determinations: either you have concluded the War Powers Resolution does not apply to the mission in Libya, or you have determined the War Powers Resolution is contrary to the Constitution,” Mr. Boehner wrote. “The House, and the American people whom we represent, deserve to know the determination you have made.”
Given the response of Mr. Koh, it would appear that the president does not believe that firing missiles from drones, manning a blockade line at sea, refueling NATO combat aircraft, and flying sorties that enforce the “no fly zone” in Libya can be defined as American forces engaging in “hostilities” — at least for the purpose of a work-around for the War Powers Act.
An April memo from DoJ’s Office of Legal Counsel determined that the War Powers Act did not apply to the Libya operation because the president had determined that the conflict’s nature, scope, and duration would be limited.