In a 32 page report to Congress [pdf]
President Obama concludes:
...the current U.S. military operations in Libya are consistent
with the War Powers Resolution and do not under that law require
further congressional authorization, because U.S. military
operations are distinct from the kind of “hostilities”
contemplated by the Resolution’s 60 day termination provision.
Now, the New York Times reports
that this legal opinion was reached by rejecting the views of top lawyers at the Pentagon and the Justice Department. It is instructive to compare President Obama's actions
with those of his predecessor, George W. Bush.
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release June 15, 2011
BY SENIOR ADMINISTRATION OFFICIALS
Via Conference Call 2:10 P.M. EDT
Q Thank you, gentlemen, for taking the time to do the call and thank you for your service
. My question is a simple one. Does the President believe that the War Powers resolution is constitutional or not? Thank you.
SENIOR ADMINISTRATION OFFICIAL: We are in no way putting into question the constitutionality of the War Powers resolution. As you know, we filed the initial report in this matter before the character of the mission changed. We are operating now in this reconfigured mission consistent with the War Powers resolution, and as you know, we've also sought from Congress continuing authorization.
Q But if you don't have that authorization, the War Powers resolution requires you to withdraw all military forces. Do you intend to do this?
SENIOR ADMINISTRATION OFFICIAL: The authorization -- and this has certainly been true of at least some Presidents before this one -- the authorization reflects a belief that in the broader cert of the resolution, which is consistent with relations between the branches, we should have the authorization. But our view also is that even in the absence of authorization, we are operating consistent with the resolution.
Q Could you explain that a little bit more?
SENIOR ADMINISTRATION OFFICIAL: Certainly. As I mentioned, as my colleague was going through the nature of the mission and how it changed, we're now in a position where we're operating in a support role. We're 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. We're not engaged in sustained fighting. 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.
So within the precedence of a war powers analysis, all of which typically are very fact-dependent, we are confident that we're operating consistent with the resolution. That doesn't mean that we don't want the full, ongoing consultation with Congress or authorization as we move forward, but that doesn't go to our legal position under the statute itself, and we're confident of that.
Q But aren't U.S. planes occasionally flying sorties and are engaging in offensive action against enemy forces?
SENIOR ADMINISTRATION OFFICIAL: Sorties obviously -- sorties, of course, include defensive action. But if you take a look at the precedence over a number of years under the War Powers Act, you will see that that does not end the analysis in any way. There have been numerous instances where the United States has supported or been engaged in some form of military activity, which has not been viewed as rising to the level of hostilities that would have either required an initial report in some cases, or alternatively, would have caused or required the United States to withdraw after the close of the 60-day period.