WASHINGTON -- The Senate Foreign Relations Committee on Tuesday overwhelmingly passed a resolution backing President Barack Obama on Libya, despite Republicans laying into an administration official hours earlier for engaging the U.S. in military action without Congressional approval.
The resolution, authored by Sens. John Kerry (D-Mass.) and John McCain (R-Ariz.), authorizes the White House to proceed in Libya with limited American forces in a supporting role. Specifically, it bars the use of ground troops and expires in a year. It cleared the committee on a 14-5 vote; all five nays were Republicans.
The measure still has to pass the full Senate and comes just days after the House handily rejected a similar measure. But it delivers the White House a desperately needed show of support from Congress, where many lawmakers are somewhere between frustrated and outraged over Obama's decision to bypass their authorization on Libya.
Earlier in the day, Republicans took out their frustrations on State Department lawyer Harold Koh, who made the case to the panel that Obama has full legal authority to unilaterally move forward in Libya given the limited scope of the effort.
“Contrary to what some have claimed, we are not asserting sweeping constitutional power to bypass Congress,” said Koh.
Koh pointed to an “unusual confluence” of factors affecting the U.S. role in Libya -- the limited mission, exposure, risk of escalation and choice of military means -- that ultimately led Obama to conclude he has the ability to launch military action in this case. The White House justifies its argument by saying the U.S. has played only a supporting role in the NATO-led bombing campaign in Libya, which began in mid-March.
But some Senators said Koh's reasoning still didn't resolve their questions about the constitutionality of Obama's actions, or his wisdom in bypassing Congress. Indeed, Tuesday's hearing largely served as a platform for Senators to reassert themselves as a co-equal branch of government.
The president’s steps in Libya “are at odds with the Constitution,” charged ranking member Dick Lugar (R-Ind.). “There is no reason why he failed to seek Congressional authority.”
Sen. James Risch (R-Idaho) repeatedly pressed Koh on whether Obama still believes, as he said in a 2007 Boston Globe questionnaire as a candidate, that the president doesn't have the power to unilaterally authorize military action unless there is an imminent threat to the United States.
Koh fumbled in his response, parsing the words used in the 2007 questionnaire and saying they didn't carry legal standing. "How many angels can dance on the head of a pin when we're talking about hostilities?" Risch fired back.
But the sharpest words came from Sen. Bob Corker (R-Tenn.), who ripped Koh’s “preposterous” argument that U.S. warplane strikes don’t constitute “hostilities” and therefore don’t warrant Congressional approval. He said it was “humorous” that the administration didn’t provide the committee with witnesses from the Justice Department and the Pentagon, despite both being invited.
“The administration has basically said there is no reason for us to get any kind of resolution from Congress,” Corker said. “And yet, the Senate today, in its urge to be relevant, is rushing to give the administration a resolution, even though you’re basically saying in this case the Senate is irrelevant.”
Corker accused the administration of “basically sticking a stick in the eye of Congress,” and asked Koh, “Are you glad?”
“If you felt that a stick was stuck, that was not the goal,” Koh replied.
Short of an issuing an apology, Koh conceded the administration has made errors in the way it has communicated with Congress on Libya.
“I think that this controversy has probably not played out exactly as some of us would have expected,” he said. “If we had to roll the tape back, I’m sure there are many places where some of you would have urged, and I would have been among them, coming up earlier for more briefings, to lay out these legal positions.”
“For my part of that, I take responsibility.”
But Corker continued taking shots at Koh, going well over his allotted time to rip Koh’s “cute argument” that the administration can bypass Congress on Libya since it is defining “hostilities” in a limited way.
“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’ve done a disservice to our country,” Corker said.
Kerry defended the president and said Corker had his facts wrong. The bottom line, he said, is that Congress botched the process by not responding to Obama’s request for authorization to proceed in Libya after 60 days, a step required by the War Powers Act.
Obama “sent us a letter requesting us to do the authorization, and we didn’t do it. That’s the simple fact here,” Kerry said. “I went to the leaders, nobody wanted to do it.”
“It’s 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.”
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