Tuesday, June 21, 2011 - 5:31 PM

91 days after President Barack Obama notified Congress he was using U.S. military force ito attack Libya, Sens. John Kerry (D-MA), John McCain (R-AZ), and Carl Levin (D-MI) introduced a resolution authorizing the intervention. But don't expect the Senate to pass it any time soon.
In interviews with over a dozen senators Tuesday, The Cable discovered that it will take weeks, not days, for the resolution to come up for a vote. The resolution's language is only the starting point for a Senate debate that will feature resolutions and amendments from multiple senators, each of whom has their own ideas of how to express the Senate's position on the Libya war. Of course, the lack of Senate consensus on the war is precisely why there's been no debate until now, but Obama's declaration last week that there are no "hostilities" ongoing in Libya and the expiration of the deadline to use military force without Congressional authorization under the War Powers Resolution have forced the issue.
Even the three senators who are leading the resolution drive can't agree on whether Obama's adventure in Libya is legal in the first place.
"I do not think our limited involvement rises to the level of hostilities defined by the War Powers Resolution," Kerry said on the Senate floor Tuesday morning.
"I'm dubious of that interpretation," Levin said in a brief interview today, addressing the administration's claim that the U.S. intervention in Libya did not amount to a war. "But that's not the point. The point is that regardless of what one's position is on the interpretation of the word hostilities, nonetheless the question is whether or not you support or oppose continuing that mission."
McCain doesn't even believe that the War Powers Resolution is consitutionally valid, but still thinks that the U.S. actions in Libya amounted to war. "When you're sending out Predators and killing people and doing other things, that's conflict," McCain told The Cable today.
In a brief Tuesday interview with The Cable on the miniature subway that connects the Capitol to the Hart office building, Kerry said his bill could be marked up as early as June 28, when the Senate Foreign Relations Committee meets. He acknowledged that there will be several amendments, and said that when it will reach the Senate floor will depend on the judgment of Senate Majority Leader Harry Reid (D-NV).
If Reid doesn't start the debate immediately - and doing so would require him to sideline a lot of other pressing business -- the bill would then be pushed until after the July 4 recess. The earliest it could then come up for debate would be July 12.
And that's just the beginning of the challenges that the resolution will face. Sen. Richard Lugar (R-IN), the ranking Republican on Kerry's committee, told The Cable today that Kerry's resolution won't be the only game in town.
"We're going to have lots of resolutions. That will not be the only resolution offered," he said in a brief interview in the basement of the Capitol, pointing out that SFRC will hold a hearing next Tuesday "as to why there is any conceivable justification for the war at all."
No matter what resolution the Senate comes up with to authorize the Libya war, Lugar will be voting no.
"I oppose our going to war with Libya. Libya was not a security threat to the United States," he said.
Many other Republicans are holding back on declaring their support for the Libya intervention, at least until the Obama administration fulfills their demands for more information about the mission, and a timeline for its completion.
"I hope Sen. Reid will give us some floor time and we'll have a debate. There are certainly a variety of views, it certainly won't be a rubber stamp for what the president is asking for," Sen. John Cornyn (R-TX) told The Cable near the elevators that lead to the GOP caucus lunch room. Cornyn has his own resolution, which explicitly calls for regime change.
"I'd like to know what the president's plan is, as far as I can it's all being done ad hoc. I think that should be a minimum requirement that we get a plan from the president," Cornyn said. "I think people are frustrated that the president has ignored Congress and ignored the Constitutional role that the Congress is supposed to play."
The administration argues that it has consulted Congress several times, but many senators are unhappy with the quality of the information. Sen. Jeff Sessions (R-AL) told The Cable Tuesday that he was finally given a briefing June 10 by Undersecretary of Defense for Policy Michele Flournoy and others but that it did not pass muster.
"It was one of the weakest briefings I've ever had. I thought it was very, very weak," Sessions said. He wants better information from the administration before he decides whether to vote to endorse the Libya war.
"I'm not prepared to endorse that now. I'm very unhappy with the administration's position on Libya. It's stunningly deficient," he said. However, he added that the mission would be in the national interest if Qaddafi could be removed effectively.
Of course, there will always be some senators who are opposed to the Libya intervention no matter what the administration does.
"I would like President Obama to be like candidate Obama, who said we should not go to war without Congressional authority," Sen. Rand Paul (R-KY) told The Cable today. He also has a Libya resolution that opposes the use of force altogether.
Meanwhile, the House GOP isn't waiting for the Senate to act on Libya. The House could vote as early as Thursday on a defense bill that includes language to defund the Libya intervention barring increased information and communication from the White House. While that bill wouldn't become law unless the Senate concurs, it does highlight the split inside the GOP on how to proceed.
"I think they're trying to have it both ways, to have their cake and eat it too," Levin said about the House GOP. "They want to say to the president ‘send us an explanation' rather than taking a position as to whether to continue to support this NATO mission or not. I think people know enough to know whether or not they believe they support the mission. And they ought to take a position on it, rather than just attack the president because he hasn't adequately consulted."
Cornyn disagreed, saying that the House GOP is not necessarily opposed to the intervention or becoming more isolationist, as some have alleged -- they just want more details.
"I don't think its isolationist to say you would like a plan," he said.
Brendan Smialowski/Getty Images
The president is the commander in chief
The fact is the constitutionality of the War Powers Resolution (RL 32267) of 1973 has not been tested before the Supreme Court so perhaps it is time for the Resolution to be taken to the court. Past history however seems to indicate that neither the president nor the congress want to see the Resolution before the Supreme Court. In fact, it seems the courts themselves don't want the War Powers Resolution before the courts or The Court itself.
Consider the history involved, as documented by the Congressional Research Service of the Library of Congress since adoption of the War Powers Resolution in 1973.
In 1983 eleven Members of Congress filed a suit challenging the constitutionality of President Reagan's invasion of Grenada. A US district judge held that courts should not decide such cases unless the entire Congress used the institutional remedies available to it, i.e., require a report and conduct a vote. It was the Congress that failed to observe the requirements of its own Resolution.
On August 7, 1987, Representative Lowry and 110 other Members of Congress filed suit in the U.S. District Court for the District of Columbia, asking the court to declare that a report was required under section 4(a)(1) in respect to Pres Reagan's decision to defend Kuwait merchant ships against Iraqi attacks. The following December 18 the court dismissed the suit, holding it was a "nonjusticiable political question," and that the plaintiffs' dispute was "primarily with fellow legislators."
On December 13, 1990 Judge Harold Greene of the Federal district court in Washington denied a request of some certain Members of Congress to enjoin President and Commander in Chief George H.W. Bush deploying US troops in Operation Desert Shield, holding that the controversy was not appropriate for judicial constitutional resolution.
The courts thus have had little role in the interpretation of the Resolution, judiciously preferring to leave the matter of war and peace to the constitutionally prescribed branches of government, i.e., the executive and the legislative.
As a reminder, Article II, Section 2 of the Constitution provides that "The president shall be Commander-in-Chief of the Army and Navy of the United States." While it's clear that the Framers intended for Congress alone to declare war, presidents don't always check with Congress before acting. In 1950 President Harry Truman bypassed Congress to go to war in Korea. This repeated solidary presidential Cold War behavior over time precipitated the Congress to enact the War Powers Resolution against Pres Nixon and SecState Henry Kissinger during the Vietnam War in 1973.
Directly of relevance and material substance in the present instance of Pres Obama, Lybia, Gadhafi and the Congress, however, is Section 8(b) of the War Powers Resolution, which states that further specific statutory authorization is not required in order to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands, high level military commands which were established prior to the 1973 date of enactment of the joint war powers resolution and pursuant to the United Nations Charter, or pursuant to any treaty ratified by the United States prior to such date (1973).
During the dance of legislation that produced the Resolution this section was added by the Senate to make clear that the resolution did not prevent U.S. forces from participating in certain joint military exercises with allied or friendly organizations or countries. The conference report accompanying the Resolution stated that the "high-level" military commands meant the North Atlantic Treaty Organization, (NATO), the North American Air Defense Command (NORAD) and the United Nations command in Korea. (The North American Air Defense Command - NORAD - is now the North American Aerospace Defense Command.)
The limited US participation in the Lybian operation is authorized by the commander in chief of all US military forces, namely President Obama, the UNSC and is a part of the NATO operation which itself consists of several "allied or friendly organizations or countries." Included in the "friendly organizations" is of course the Lybian National Council which has been recognized by some NATO-European governments, to include Italy and Germany, to be the legitimate government of Lybia. The UNSC Resolution also was adopted with the support of the Arab League which of course includes "allied or friendly organizations or countries" among which a few also recognize the Lybian National Council as the legitimate government of Lybia.
There isn't much here for Congress to chew on, but chew they will - the Republicans in the House especially. Obama has an unnerving tendency as president/CIC to lay low on the issues, preferring to allow the Congress to run about willy-nilly all the while handing the Congress all the rope it will grab. As we are witnessing, the Congress seldom fails to disappoint as the pattern continues on the war powers issue/non-issue. Meanwhile, the US courts will have nothing to do with this shady and vague Resolution adopted willy-nilly by irresolute rascals.
The War Powers Resolution fails polltically, militarily and constitutionally because Congress drags itself into the twilight realm of the contemporary commander in chief in a world dominated by stateless actors. We instead need a Consultative Act or Resolution that is pre deployment and also post deployment. This Resolution is a turkey and Congress is chewing on its leftovers yet again.
Interference in other countries issues
The majority of Libyans is behind Qaddafi. If it wasn't, the government would have crumbled within weeks.
On th contrary, these rebels are composed of some Al Qaeda (aka Libyan Islamic Fighting Group, LIFG), some defectors from the Libyan and volunteers. They can't even win with NATO air cover.
What's next? Ground troops?
There is need for a political solution, enough of bloodshed.
More than million one Libyan in Tripoli for Qaddafi
Take a look on what kind of support Colonel Qaddafi has:
http://www.youtube.com/watch?v=YL9PjrMNPKo
He has armed the population. What to do? Kill one million people?
Nuke Tripoli?
Josh Rogin reports on national security and foreign policy from the Pentagon to Foggy Bottom, the White House to Embassy Row, for The Cable.
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