week. he will be replaced by leon panetta. you can watch the retirement ceremony later this week on c- span, c-span.org, and on the c- span video library. it is washington your way. >> state department legal does notarold kcoe apply to libya. after this two-hour hearing the committee marks of legislation authorizing the libyan mission for a year, but barring ground forces. >> the hearing will come to order. i apologize for starting a few minutes late. we are here this morning to further examine an issue that we have been debating since it was passed. i think this is a good kid -- a debate of decades, since the 1970's. certainly, it has been debated over the course of the last war's with respect to the parts resolution and its role in america's use of force in libya. want to thank all my colleagues for the very constructive manner in which we conducted that discussion over these past weeks. this afternoon, the committee will meet again. i would ask all the members, as you run into all the other members, if we could begin that meeting punctually. i think there is a fair amount of business. it is obviously important business. i want to try to considered as expeditiously as possible. that is with respect to the proposed resolution regarding the limited operations in support of the nato mission in libya. it is my personal firm belief that america's values and interests compel us to join other nations in establishing a no-fly zone over libya. by keeping duffy's most potent weapons out of the fight, -- by most potentafi's weapons out of the fight, it was a big difference. it has been confirmed that the actions of the united nations indeed saved thousands of people from being massacred by gaddafi. there is no question in my mind about that. we also sent a message about something that matters to the american people, as a matter of our values. that it's about whether or not leaders should be permitted, willy-nilly, to turn their armies on their own citizens, the citizens they're supposed to serve and protect. i made clear my belief that the 60-day restriction contained in the war powers resolution does not apply in this situation, particularly since we handed over the operations to nato. some people, obviously, can draw different interpretations and will and we will have a good discussion about that. it is good to remember that the worker resolution was a direct reaction to a particular kind of war, to a particular set of events -- the vietnam war. at that time, it was the longest conflict in our history that resulted, without any declaration of war, in the loss of several thousand american lives spanning three administrations. during those three administrations, congress never declare war. understandably, congress, after that, wanted to ensure that, in the future, it would have the opportunity to assert its constitutional program moves, which i do believe with and agree with, when america sends its soldiers abroad. but our involvement in libya is clearly different from our fight in vietnam. it is a limited operation and the war powers resolution applies to the use of armed forces in "hostilities or situations where imminent hostilities in vault are clearly indicated by the circumstances referring to the american armed forces." for 40 years, presidents have taken the view that this language does not include every single military operation. presidents from both parties have undertaken military operations without express authorization from congress. i will emphasize that that does not make it right. i am not suggesting that it does. it still begs the analysis each time of whether or not it fits a particular situation. certainly, panama, grenada, haiti, costs of a, 11 non, the list is long where presidents have -- because of lokosovo, lee list is long were presidents have done this. in lebanon, congress actually authorize action a year later. we have never minded in the war powers resolution -- we have never amended the war paras resolution. define hostilities only as those situations where u.s. troops were exchanging fire. with hostile forces. subsequent administrations, republican and democrat alike, build on that interpretation. but, in libya today, no american is being shot at. no american troops are on the ground. and we will not put them there. it is true, of course, that the war powers resolution was not drafted with the drones in mind. as our military technology becomes more and more advanced, it may well be that the language that i just read needs for the clarification. maybe it is up to was to redefine it in the context of this more modern and changed warfare and threat. i certainly recognize that there can be very reasonable differences of opinion on this point. so i'm glad we're having this hearing. i think it is important. many of us have met with members of the libyan opposition. i know senators are eager to get to know them better and to learn about their plans and goals. i see we are joined this morning by with his ambassador to the united states. but he resigned during the uprising and is now the diplomatic representative of the transitional national council which only recently was moved by germany to recognize. we would all like to see a brighter future for libya. that is why, when it comes to american involvement, we need to look beyond the definition of hostilities to the bigger picture. a senate resolution authorizing the limited use of force in libyan well, i think, show the world, especially gaddafi, at a time when most people make a judgment that the nooses tightening, that the vice is squeezing, that the opposition is advancing, that the regime is under enormous pressure that congress and the president are committed to this critical endeavor. the united states is always strong this when we speak with one strong voice on foreign policy. that is why i hope we can find an agreement to a bipartisan resolution this also sends a message to our allies in nato. secretary gates, prior to departing in recent days, made a very strong speech about the nato, the need for nato to do more. the fact is that nato is doing more in this effort. and they are in the lead in this effort. we have asked in the past but the alliance take the lead in many conflicts. to often, they have declined. in this case, they have stepped up. i believe that, for us to turn on our own words and pull out the rug from under them, it would have far reaching consequences. with that said, i am greatly -- it is a great pleasure for me to welcome harold coe. he is listed department's legal adviser. he is an extremely distinguished adviser. he has a long career of service in the government as well as academia. we have also invited some witnesses from the pentagon and the justice department, but they have declined to appear. we have louis fisher and scholar and resident of the constitution project. he worked for four decades of the library of congress as the senior specialist in separation of powers and is a specialist in constitutional law. professor spiro has served in the state department and on the national security council staff and has written extensively on foreign relations law of the united states. we think all the witnesses for taking time to be here today. >> thank you very much, mr. chairman, for calling this meeting. it will consider the legal basis for ongoing u.s. military operations in libya. the president declined to seek congressional operation before engaging in hostilities. he is carrying out for more than three months without seeking your receiving congressional authorization this is at odds with the constitution and with the president's own pronouncements on war powers. for example, in december 2007, he responded to a boston globe question by saying, "the president does not have power under the constitution to unilaterally authorize a military attack in a situation that does not involve stopping it an actual or imminent threat to the nation." before return to constitutional and legal issues, i believe it is important to make a more fundamental point. even if one believes the president somehow have the legal authority to initiate and continue the military operations in libya, it does not mean that going to war without congress was either wise or helpful to the operation. the vast majority of members of congress, constitutional scholars, and military authorities would endorse the view that the president should seek congressional authorization for war when circumstances allow. there is a new uniform opinion that the chances for success in a war are enhanced by the unity, clarity of mission, and constitutional certainty for such an authorization. there was no good reason why president obama should have failed to seek congressional authorization to go to war in libya. a few excuses have been offered, ranging from an impending congressional recess to the authority provided by you and security council resolution. but these excuses do not justify the president's lack of constitutional discipline. 12 days before the united states launched hostilities, i called for the president to seek a declaration of war before taking military action. the arab league resolution, which a key events on calculations in the war, was passed a full week before we started launching cruise missiles. there was time to seek congressional approval and congress would have debated a war resolution if the president had presented one. this debate would not have been easy. but the president should not avoid constitutional responsibilities merely because engaging the people's representatives is inconvenient. if the outcome of congressional war is in doubt, it is more the reason why the president should seek debate. if he does not, he is taking the extraordinary position that his plans of war are too important to be upset by a disapproving vote in congress. the founders believed that presidents alone should not be trusted with war-making authority. and they constructed checks against executive unilateralism. james madison tbroad latitude jefferson. "the executive is the branch of our most interested in war and most prone to it. it has accordingly with studied care bested the question of war in legislature." nearly, there are some some -- circumstances under which the present maybe justified in employing military force without congressional authorization none of the reasons apply to the libyan case. our country was not attacked or threatened with an attack. we were not obligated under a treaty to defend the libyan people. we were not rescuing americans or launching a one-time punitive retaliation. nor did the operation require a surprise. in this case, president obama made a deliberate decision not to seek congressional authorization of his actions, either before it commenced or during the last three months. this was a fundamental failure of leadership that placed expedient of the constitutional responsibility. some will say the president is not the first to employ american forces overseas in controversial circumstances without a congressional authorization. the highly dubious argument offered by the obama administration for not meeting congressional approval breaks new ground in justifying a unilateral presidential decision to use force. the approval of even more worried -- more were making authority in the executive is not in our country's best interest, especially at a time when our nation is deeply in debt and our military is heavily committed overseas. at the outset of this complex, the president heard that the experience in libya would be limited. three months later, the assurances ring hollow. american and coalition military activities have expanded to an all-but declared campaign to drive gaddafi from power. the administration has been unable to apply any duration. in effort to protect civilians under imminent threat to obliterating libya's military arsenal. most recently, the administration has sought to avoid its obligation under war powers resolution by making the incredible assertion that u.s. military operations in libya do not constitute hostilities. even some prominent supporters of the war have refused to accept this claim. the administration's own description of the operations in libya _ the fallacy of the vision. -- in libyan underscore the fallacy of the vision. predator drungs fired missiles on many occasions -- predator drones fired missiles on many occasions. they depend on the essential support functions provided by the united states. the resolution required the united -- the president to terminate fossiforces in libya y 20. the administration declined to offer any explanation of its view that u.s. forces were not engaged in hostilities in libya and tarot nearly a month later, on june 15. -- in libya until nearly a month later, on june 15. the administration analysis focuses on the question on whether u.s. casualties are likely to occur. thereby minimizing other considerations relevant to the use of force. if this definition of hostilities or expected, presence would have significant scope to conduct warfare through other means, such as missiles and drones. the administration's report also implies that, because allied nations are flying most of the missions over libya, the united states operations are not significant enough to require congressional authorization. this characterization underplays the neutrality of the u.s. contributions to the nato operations in libya. we are contributing 70% of the coalition's intelligence capabilities and the majority of its refueling assets. the fact that we are leaving most of the shooting to the country's does not mean that the united states is not involved in acts of war. moreover, the resolution encompasses the kinds of operations u.s. military forces are performing in support of other nato countries. these concerns are compounded by indications that the administration's legal position was a result of a disputed decision process. according to press reports, the president made the decision to adopt this position without the department of justice having the opportunity to develop a unified legal opinion. it is regrettable that the administration has refused our request to make witnesses available for today's hearing. finally, one would expect the administration to be fully forthcoming on consultations about libya to compensate in some measure for the lack of congressional authorization for the war. although consultations do not substitute for formal authorization, they serve a vital purpose in unifying the government and providing congress with a basis for decision making on the war. for the most part, for example, the clinton administration and president clinton himself consulted meaningfully with congress in the united states innovations -- united states interventions in the balkans parent this committee alone has experienced at least -- in the balkans. this committee alone has experienced at least where witnesses have been denied and questions about the operations have gone unanswered. this inexplicable behavior contributes to the damage that the libya president might trade in the future. -- libya precedent might create in the future. the president does not have the authority to substitute his judgment for constitutional process when there's no emergency that threatens the united states and our vital interests. the world is full of examples of local and regional violence to which the united states military could be applied for some altruistic purpose. under the constitution, the congress is vested with the authority to determine which, if any, of these circumstances justify the consequences of american military intervention. i think the german for the opportunity to make this statement. >> thank you very much. legal counsel, other you have it, sir. the stage is set. two different views reflecting over 50 years of service on this committee. we're still not sure what the answer is. so your task this morning is an interesting one. i think we will not only have a good dialogue, but maybe it will be fun. have at it. you are on. >> thank you, mr. chairman. it is good to be back before you. like past legal and buzzers, i am honored to appear to explain the administration's legal position under work hours. i submitted detailed testimony, which have before you, which reviews the brutality visited by gaddafi on the people of libya and the urgent but restrained depth this administration has taken to stop that within a supporting role in a mission that is limited with respect to design from exposure of u.s. troops, risk of escalation, and choice of military means. today, let me make three points. first, this administration is acting lawfully, consistent with both the letter and spirit of the constitution and the war powers resolution. contrary to what some have claimed, we're not asserting constitutional power to bypass congress. he has never claimed authority to violate the war powers resolution. he has not claimed the right to violate international law to use force abroad when doing so would not serve important national interest or to refuse to consult with congress on important war powers issues. we recognize that congress has powers to term it uses of force and the war powers resolution plays an important role in promoting dialogue. my testimony today continues that dialogue which now includes 10 hearings, 30 briefings, and dozens of exchanges with congress on this issue. from the start, we have sought to serve the law -- to obey the law. he framed our military mission narrowly, but no ground troops would be deployed, that u.s. forces would transition responsibility to nato command, shifting to a constrained and supporting role within a multinational civilian protection mission. from the outset, we noted that the situation in libya does not constitute a war requiring specific congressional approval under the declaration of war clause of the constitution. as my testimony notes on page 13, the president has constitutional authority long recognized to direct the use of force to serve important international interests and supporting regional stability and credibility and effectiveness of the security council. the nature, scope, and direction he ordered did not rise to the level of war for constitutional purposes. so my second point is that we do not believe that the war powers resolution 60-day immediate pullout applies to this mission. the resolution directs the president to remove u.s. armed forces within 60 days from the date the hostilities or situations where imminent. as everyone recognizes, the legal trigger for the automatic pullout clock, hostilities, is a in in the guinness term of art not found anywhere in the statute. -- is an ambiguous term of art found anywhere in the statute. from the start, legislators disagreed about the meeting of the term and the scope of the 60-day pullout rule and whether a particular set of facts constitute hostility is for the purpose of the resolution. that has been determined less by a narrow parsing of dictionary definitions. the members of congress who drafted the war cars resolution understood that this was not like to the internal revenue code. reading the war powers resolution should not be a mechanical exercise. the term hostilities was a vague, but they declined to give it more concrete and part to avoid hampering future presence by making it a one-size fits all straitjacket that works mechanically without regard to the facts. there are various leaders of this congress who have indicated that they do not believe that the u.s. military operations in libya amount to a cut of hostilities in news and above the 60-day pullout provision to an we agree. the historical -- 60-day pullout provision. we agree. we are not in hostilities of the kind envisioned by the war cars resolution that was intended to travel an automatic 60-day pullout. let me say a word about