The Obama administration responded to pressure this week regarding the legality of American military involvement in Libya by claiming that the War Powers Resolution does not apply. Citing a limited support role in the NATO intervention, the President decreed the Vietnam-era legislation which requires Congressional approval for any military engagement surpassing 60 days irrelevant in the current context.
The House of Representatives passed an amendment last Monday onto a military appropriations bill that would prohibit any funding of the war in Libya, which will have cost $1.1 billion by September. Additionally, a group of ten representatives have filed a formal lawsuit against President Obama and outgoing Defense Secretary Robert Gates on the grounds that the intervention in Libya is illegal and unconstitutional. Still, the administration refuses to ask permission from Congress and continues to maintain, as State Department legal advisor Harold Koh said, “We are acting lawfully.”
The administration’s defiance in this regard notes an expanded authority ascribed to the Executive Branch, unrestricted by traditional checks and balances in war-making powers. And the legal position they are taking – that supporting, planning, and conducting attacks from the air does not amount to the “hostilities” specified by the War Powers Resolution – is not very strong. Indeed, the law requires the President to seek Congressional approval “in any case in which United States Armed Forces are introduced: (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances …”