Lawmakers say modern warfare has dated the War Powers Resolution

Republican and Democratic senators continued to disagree over the Libya military operation Tuesday, but a consensus emerged that modern weapons of war have made the War Powers Resolution outdated.

Senate Armed Services Committee members again were split along party lines about whether the White House violated the 1973 law by launching military intervention in Libya without congressional notification.

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Harold Koh, a senior State Department legal adviser, reiterated the Obama administration’s contention that the president acted within the bounds of the Constitution and the War Powers Resolution, an argument congressional Republicans flatly reject.

Directly addressing GOP concerns, Koh told the panel Obama never indicated a right as chief executive or an intention to violate either the Constitution, the War Powers Resolution or international law.

The State Department lawyer repeated an administration contention that with the U.S. handing the bulk of offensive missions in Libya and operational control to NATO before the War Powers Resolution's 60-day forced pull-out requirement, its current supporting role fails to meet the law’s definition of hostilities.

NATO aircraft are now conducting 90 percent of the airstrike sorties inside Libya, Koh said, and 75 percent of all sorties.

Republican panel members mostly blasted the Obama administration for failing to seek congressional approval before launching the mission, which the American military led during the opening weeks.

Sen. Bob Corker (R-Tenn.) said by not first coming to Capitol Hill, the White House opted for “sticking a stick in the eyes of Congress," a move he said “undermined the integrity of the War Powers Act."

Panel Chairman Sen. John Kerry (D-Mass.) took umbrage to Corker’s remarks during a testy exchange, saying he went to Senate leaders before the operation began in March about a use-of-force resolution “but no one wanted to do it.”

Saying he would not stand by and let critics “throw darts” at the White House, Kerry added that “any senator can go to the Senate floor” to challenge the constitutionality of the operation, but no senator has done so.

The partisan clashes comes just hours before the same committee will mark up a bipartisan resolution that would authorize the Libyan mission — but on a limited basis. Last week the House shot down a similar bill.

Between those clashes, committee members zeroed in on the use of Predator unmanned aircraft by the U.S. military in Libya.

Because the remotely piloted drones means U.S. military personnel are not directly at risk, senators argued, Obama and all future commanders in chief will be able to build an argument to get around the War Powers Resolution’s definition of hostilities.

For that reason, Kerry and Sen. Dick Lugar (R-Ind.), the panel’s ranking member, agreed it might be time to revist the post-Vietnam era law.

Unmanned aircraft and other emerging technologies mean wars will be fought “totally differently” in the future, Lugar said.

This means future presidents could shut out Congress when deciding whether to use the U.S. military by “waging war remotely,” Lugar said. With no U.S. troops directly at risk, a legal argument could be framed to get around the War Powers Resolution, he warned.

To this end, the U.S. involvement is setting a new precedent, Corker warned.

“By the president’s reasoning, we could drop a nuclear bomb on Tripoli” but lawyers could argue that is not hostilities under the 1973 law, Corker said. The same argument could be made, without changes to the law, for Predator strikes, he said.

“But we know what Predators do,” Corker said. “A lot of times, human beings are not alive when they finish doing what they do.”

Not so fast, Koh shot back, saying that if the U.S. were using the Predators to carry out many more strikes or for the “carpet bombing” of another nation, it would create different legal dynamics. But, right now, the rate of Predator strikes in Libya “is not even close” to the amount that would trigger the War Powers Resolution’s 60-day troop withdrawal provision, Koh said.