The Obama Administration has informed the U.S. Congress that it has the necessary authority to continue with its participation in the Libyan military mission led by NATO, even though the action is not authorised by the Congress.
In a 32-page document sent to the Congress, the White House argued that the U.S. President does not require authorisation by the Congress because it is only providing supporting role to the NATO-led mission.
This comes a day after John Boehner, Speaker of the US House of Representatives, wrote a letter to Obama saying that he would soon be violating the War Power Resolution of 1973 if he did not get Congressional approval.
“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,” a senior administration official said.
“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,” the official explained.
“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.”
The official said this doesn’t mean that the administration don’t want the full, ongoing consultation with Congress or authorisation as they move forward.
“But that doesn’t go to our legal position under the statute itself, and we’re confident of that,” the official argued.
Administration officials explained that there have been numerous instances where the U.S. 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 US to withdraw after the close of the 60-day period.
The US, the official said, has fundamentally shifted from being in the lead end of offensive operations, as it was in the initial days, to being pulled back into a support role of its allies and partners.
“The particular capability was a unique capability that the President has made available to NATO; it is the unmanned aerial vehicles that are able to on occasion strike targets. But that is a very limited contribution. And, again, by any measure, the responsibility for the enforcement of no—fly zone and civilian protection has shifted,” the official said.
The War Powers Resolution of 1973 requires the President to notify Congress within 48 hours of committing armed forces to military action.
It forbids the forces from remaining for more than 60 days with a further 30 day withdrawal period, without an authorisation of the use of military force or a declaration of war.