By Sam Youngman, Russell Berman and Mike Lillis - 06/16/11 12:45 AM EDT
The White House on Wednesday argued President Obama has acted consistently with the War Powers Resolution in using U.S. military forces in Libya without first asking for congressional approval.
The administration’s argument, made in a more than 30-page report and legal analysis sent to congressional leaders, is that Obama is in compliance with the resolution because the U.S. does not have a lead role in the Libyan operation, which is being carried out by NATO.
Senior administration officials said that the president is not challenging the constitutionality of the resolution by not requesting approval from Congress, but instead maintained that because the U.S. is acting in a support role with no troops on the ground, no war authorization is necessary.
The U.S. is “not engaged in any of the activities that typically over the years in war powers analysis is considered to constitute hostilities within the meaning of the statute,” White House general counsel Bob Bauer explained.
“We’re not engaged in sustained fighting,” Bauer said. “There’s been no exchange of fire with hostile forces. We don’t have troops on the ground. We don’t risk casualties to those troops. None of the factors, frankly, speaking more broadly, has risked the sort of escalation that Congress was concerned would impinge on its war-making power.”
Lawmakers from both parties criticized the arguments, and Boehner’s office also said it was unhappy the administration chose to leak its rationale to The New York Times before the report was sent to Capitol Hill.
“The creative arguments made by the White House raise a number of questions that must be further explored,” Boehner spokesman Brendan Buck said.
“The commander in chief has a responsibility to articulate how U.S. military action is vital to our national security and consistent with American policy goals. With Libya, the president has fallen short on this obligation.
“We will review the information that was provided today, but hope and expect that this will serve as the beginning, not the end, of the president’s explanation for continued American operations in Libya,” Buck said.
Separately, a leadership aide said, the White House did itself no favors by feeding the report to the press first.
“If the White House intends to assuage Congress’s concerns, they might want to share the report with Congress before leaking it to The New York Times,” the aide said.
The White House provided its explanation after Boehner on Tuesday warned the president would be in violation of the War Powers Resolution this Sunday without congressional authorization for the use of U.S. troops.
The report provides several new details about the mission, including that it cost $715.9 million through June 3 and is estimated to reach $1.1 billion by the end of September.
The Department of Defense does not plan to seek supplemental appropriations from Congress and instead “will pay for these costs using currently available Defense funds.” The report notes that “lower priority support activities” may be reduced to offset those costs.
Because of rising opposition to the mission, Congress could have trouble passing a supplemental appropriations bill for the operation.
The report also says “there has not been a significant operational impact” on U.S. operations in Iraq or Afghanistan because of the Libya mission.
The report reminds Congress that U.S. ground forces are not being deployed in Libya, but it notes an exception for “personnel recovery operations as may be necessary.” It does not say if such operations have been used.
The NATO mission, the report says, has been authorized through the end of September.
The 1973 War Powers Resolution requires presidents to get congressional approval for military operations within 60 days, or withdraw forces within the next 30.
Since its approval, the executive and legislative branches have repeatedly battled over the law, with presidents in both parties trying to preserve as much power to use force as they see fit.
Obama’s decision to launch air strikes against Libya with at best limited consultation with Congress was criticized by leaders in both parties. On Wednesday, Reps. Dennis Kucinich (D-Ohio) and Walter Jones (R-N.C.) led a group of 10 lawmakers in filing suit against the administration over the Libyan war.
“Look, we're at war. There's already been $750 million spent,” Kucinich said. “Whether there are boots on the ground or not doesn't really get into the question of whether or not the president had the ability [to intervene] in the first place.
“It's a constitutional issue here, and it can't be danced around at all.”
“It’s the law,” Rep. John Conyers Jr. (Mich.), the senior Democrat on the Judiciary Committee, said in a statement. “The president cannot unilaterally take the country to war.”
Administration officials vehemently defended Obama’s actions, saying the president had saved “potentially” thousands of lives.
This story was updated at 10:00 p.m.