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Senate to Take Up Potential Libya Authorization Compromise

July 1, 2011 - by Donny Shaw

The Senate has canceled their week-long July 4th vacation so they can continue working on a deal to raise the debt ceiling, the deadline for which has been pushed forward to July 22nd. But while those discussions take place in back rooms out of the public view, the full Senate will publicly debate a bill to provide congressional authorization of U.S. involvement in the war in Libya for up to one year.

The bill, S.J.Res.20, is sponsored by John Kerry [D, MA] and John McCain [R, AZ], and it is scheduled for a cloture vote on Tuesday. If that motion is approved (60 votes will be required), it will most likely be passed by the Senate later in the week. 

Marty Lederman at Balkinization describes why this bill represents a compromise that has a real chance of passing the Senate and the House, even though the House rejected a similar Libya authorization bill just two weeks ago:

The Senate bill will not be identical to the one the House rejected, because just before voting on that resolution, the [Senate Foreign Relations Committee] also approved two amendments thereto offered by Senator Lugar that just might be the key to a successful compromise. The first approved Lugar amendment would add a specific restriction to the authorization in S.J. Res. 20, to wit: “None of the funds appropriated under any provision of law may be obligated or expended to deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya unless the purpose of the presence is limited to the immediate personal defense of United States Government officials (including diplomatic representatives) or to rescuing members of NATO forces from imminent danger.” The Kerry-McCain version of the resolution that the House rejected contains a statement that “Congress does not support” such use of grounds forces; but the Lugar Amendment goes beyond that, establishing a binding legal restriction on such use. As such, it might be more palatable to some House members.

Perhaps of greater importance, the second adopted Lugar amendment would specifically provide that “United States military operations in Libya since April 4, 2011, which have included non-kinetic support to the NATO-led operations, including intelligence, logistical support, and search and rescue assistance, United States aircraft assisting in the suppression and destruction of air defenses in support of the no-fly zone, and precision strikes by unmanned aerial vehicles, constitute hostilities within the meaning of the War Powers Resolution, and may be carried out only under the conditions specified in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).”

The effect of this second Lugar Amendment, were it to become law, would be not only to reflect a congressional disagreement with the President’s views [PDF] on whether the Libya operations since April 4th have constituted “hostilities” for purposes of the War Powers Resolution, but also to establish going forward,as a matter of law, that those operations constituted “hostilities”—an interpretation of the the WPR that would (unlike the Executive’s contrary reading) be binding in the future. Accordingly, not only would it stand as a legislative rebuke to the President’s construction of the statute, but in addition it would establish a legal precedent on the meaning of the term “hostilities” that the Executive would be compelled to take into account in assessing the application of the WPR 60-day clock for future military operations.

In effect, the Lugar amendments mean that the bill now has a little something for just about everyone. It allows the Libya war to continue while also rebuking Obama’s interpretation of the War Power Resolution and reasserting congressional authority over military missions. It really can be spun as either a win or a loss for Obama, and that’s why this may get bipartisan support.

You can, and should, read the resolution here. Note that the Lugar amendments are not reflected in this version of the text.

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Comments

  • valleri 07/01/2011 5:56pm

    I thought as a member of NATO, we had an obligation to participate in authorized NATO exercises? Much of the media outlets on TV fail to cover the fact we are participating as a member of NATO.

    While I do not disagree with Congress being involved, as it is their job to do so, I do wonder if the “loophole” is the fact that military action in Libya is being performed under the authorization and direction of NATO. That may limit actions Congress can take if it is the case.

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