President Barack Obama and his administration believe that the War Powers Resolution is constitutional, but that it doesn't apply to U.S. military action in Libya.
Congress is ramping up the pressure on the administration regarding the Libya conflict as a 90-day deadline for the use of military force approaches. According to the 1973 War Powers Resolution, if Congress does not authorize a war, the president must "terminate any use of United States Armed Forces" 60 days after notifying Congress about the use of force, and that deadline may be extended to 90 days, if absolutely necessary.
Obama sent his notification to Congress on March 20, meaning that, as of June 20, his legal authorization is expired -- at least according to the 10 congressmen who filed a lawsuit against the administration today in the district court of Washington for violating the law.
Of course, the administration could continue military action in Libya in accordance with the War Powers Resolution if there was congressional authorization, but no such authorization is forthcoming, because even those senators who support Obama's Libya's policy can't agree on the language.
But in a conference call with reporters on Wednesday afternoon, two senior administration officials said that the administration will argue that military intervention in Libya is not subject to that law, due to the limited nature of the U.S. role in the conflict.
"We are in no way putting into question the constitutionality of the War Powers Resolution," one official said in response to a question from The Cable. "We are operating now in this reconfigured mission consistent with the War Powers Resolution and we've sought continuing congressional authorization."
"Our view is even in the absence of the authorization we are operating consistent with the resolution. We are now in a position where we are operating in a support role. We are not engaged in the any of the activities that typically over the years in War Powers analysis has considered to constitute hostilities within the meaning of the statute," the official said.
"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," the official continued. "None of those factors that risk the sort of escalation that Congress was concerned would impinge on its warmaking power."
Muammar al-Qaddafi's regime has fired on NATO warplanes bombarding Tripoli.
Asked if the administration was complying with the letter of the law but perhaps not its spirit, one senior administration official said, "We're comfortable we're complying with both."
Many in Congress disagree, including Brad Sherman (D-CA), who co-sponsored an amendment to the defense appropriations bill to defund the Libya intervention that passed 248-163 on Tuesday.
"There is nothing in the U.S. Constitution that says you can violate the law as long as NATO blesses it," Sherman told FP. "The second most important thing is that we bring democracy and the rule of law to Libya. The first most important thing is that we have democracy and the rule of law in the United States."
Another senior administration official emphasized that the president has fulfilled his pledge to shift the leadership and the overwhelming majority of operations in the Libya conflict to other NATO members. All of the ships enforcing the no-fly zone are European or Canadian, and the United States is "fully in a support role," providing only services such as intelligence and refueling, the official emphasized.
"It's important to remember that the president took the decision that he did at a time of great and growing crisis and emergency," the second official said, referring to Qaddafi's threats to kill his own citizens as his forces surrounded Benghazi. "We were faced with the very real and urgent danger of a pending mass atrocity."
The official also described Libya as part of the overall tide of change sweeping the Arab world, and said that allowing Qaddafi to flaunt international will would have been "gravely damaging to Libya, the region, and U.S. interests."
"The bottom line is that lives have been saved, Qaddafi's advances have been stopped ... and we see a situation whereby time is working against Qaddafi."
UPDATE: The White House released the unclassified section of a report entitled, "United States Activities in Libya," that provides administration answers to questions received from members of Congress and which can be found here.
John Hudson reports on national security and foreign policy from the Pentagon to Foggy Bottom, the White House to Embassy Row, for The Cable.