With an international warrant out for his arrest and rounds of airstrikes falling close to home, Col. Muammar Qadhafi, leader of the now weakened Libyan regime, continues to hold out against rebels in his nation and against their international allies. In the United States, the conflict, which appears to be entering a period of stalemate between the rebels and the Qadhafi regime, raises legal issues for both Congress and the president moving forward.
On March 19, with an endorsement by the Arab League to impose a no-fly zone in Libya, U.S. and NATO military forces began airstrikes to protect civilians in the rebel-held cities of Benghazi and Misurata who were under threat from Qadhafi and his regime. President Obama authorized the military action in line with the War Powers Resolution of 1973, which gives him 60 days to commit armed forces to conflicts overseas without congressional authorization. But now, as NATO airstrikes continue, the president's power to sustain military action in Libya remains in question as Congress seems unlikely to act before the resolution reaches its deadline on Friday.
"There seems to be very little interest on Capitol Hill in either declaring war or authorizing it in some other way. At the same time, there seems to be very little interest on Capitol Hill, from Republicans and Democrats, in challenging this [or] to terminate the use of armed forces," says Mark Quarterman, a crisis expert at the Center for Strategic and International Studies.
Responding to concerns that arose during the Vietnam War, Congress passed the resolution--over President Richard Nixon's veto--in 1973. According to the Library of Congress, "the Constitution of the United States divides the war powers of the federal government between the Executive and the Legislative branches: the President is the Commander in Chief of the armed forces, while Congress has the power to make declarations of war, and to raise and support the armed forces." The resolution, then, defines the procedures for each branch to follow in the case of armed conflict. It says that unless Congress provides its authorization, U.S. forces must be withdrawn from hostilities after 60 days.
The War Powers Resolution itself has been a touchy subject between the legislative and executive branches since it passed. Some members of Congress, like Arizona Republican Sen. John McCain, argue that the resolution is unconstitutional, and therefore, the president is justified in continuing the mission in Libya without Congress signing off. "No president has ever recognized the constitutionality of the War Powers Act, and neither do I," McCain said last week at a press conference.
Indeed, since it has passed, presidents have seldom followed it to a tee, many finding loopholes in its provisions. And although the Obama administration voiced its intention to comply with the resolution, it may also try to maneuver around the resolution. Foreign policy and legal experts are floating a number of possible ways Obama could get past the 60-day limit. For one, the president could argue that the current role of the United States forces is supportive rather than combative, as the NATO mission has drawn back its use of American pilots since it began. Also, according to James Lindsay, senior vice president at the Council on Foreign Relations, the president could decide to put an official stop to the mission, then start over, renewing the 60-day time period. "The argument that we're no longer at war with Libya raises some uneasiness among people because in that sense the president can sort of start and stop the war," he says. "That would violate the spirit of the legislation, let alone the original intent [of] the Framers."
Bypassing Congress in this way would also seem to clash with Obama's views before he took the presidency. In an interview in 2007 with the Boston Globe, then Senator Obama said, "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."
Members of Congress on both sides have largely remained quiet about the president's actions in Libya, a stance that could work in their benefit politically. Without Congress having to take a vote on the use of armed forces, blame for possible failures in Libya could be deflected to the presidency. Lindsay guesses that Congress won't act until the general public voices discontent over what the president is doing. "Congress is most likely to challenge the president on the War Powers Resolution if the U.S. commitment in Libya expands, or the civil war doesn't come to a conclusion," he says. "Congress is most adamant when the public is most upset, and we're not there at this point."
According to James Carafano, director of the Center for Foreign Policy Studies at the Heritage Foundation, a conservative think-tank based in Washington, the lukewarm response from Congress also could help Obama as he defines the country's role in Libya. "The president kind of gets a get-out-of-jail-free card. You've got Democrats and Republicans, even within their own sides, on all sides of this issue. There's really no critical mass of people that are going to come out and criticize the president," he says. "I don't sense any appetite from anybody seriously in Congress from really holding the president to the 60-day deadline."
While leadership in both parties hasn't taken a strong position either way, Indiana Republican Sen. Dick Lugar, ranking member of the Senate Foreign Relations Committee, has come out strongly against the president for not consulting enough with Congress on a Libya strategy. In a press release Friday, he said that "if the administration seeks to continue our military involvement in Libya, it is incumbent that they seek and secure Congressional authorization." According to Lugar's spokesman, Mark Helmke, the senator is waiting to see how the president plans to move forward before introducing any legislative or legal action to uphold the resolution.
It's still unknown how the president plans to proceed, but he may address his strategy in a speech on the Middle East scheduled for Thursday at the State Department.