Excerpt
JEFFREY BROWN (Newshour): Charlie, start us off by explaining some of the pressure that has built up from Congress. Its concern over the scope of the mission, questions of legality. What are you hearing?
CHARLIE SAVAGE, The New York Times: There's definitely been -- as you -- you used the word restive. That's a good word. Increasingly, members of both parties in Congress, especially in the House of Representatives, have been asking questions about how is it that the United States has gotten itself involved in this NATO-led air war in Libya, whether the president had the legal authority to do that on his own, whether he still has it now that -- now that it's dragged on under the War Powers Resolution, how much it's costing, who's really on the ground in Libya that we're helping out.
And there was a bipartisan rebuke, as you said, a couple weeks ago in the House. And now yesterday, with this letter from Speaker Boehner, pressure on the legal theory bolstering all this is ramping up.
JEFFREY BROWN: So, there was a response today. You have had a chance to take a look. What -- what are the main arguments?
CHARLIE SAVAGE: Well, the argument that the administration is putting forth is that the War Powers Resolution, which is a 1973 law that says that, if the president has initiated hostilities on his own, without congressional permission, he has to terminate them after 60 days, a deadline that appeared to pass on May 20, that that law doesn't apply to what the U.S. military is doing in Libya.
The constellation of activities that we're doing there, refueling, surveillance, some drone strikes, and other supporting role to our NATO allies, doesn't rise to the level of hostilities, as it -- under that law, because U.S. forces aren't on the ground. The Libyan forces are not returning fire on the U.S. There's not a risk of casualties. And the whole thing is constrained by the U.N. Security Council resolution to a limited mission.
Their argument is an assertive interpretation, to say the least, of this statute. And it will be interesting to see how Congress responds to it.
JEFFREY BROWN: All right, well, Jamin Raskin, let me turn to you for some background on this resolution we're talking about. As Charlie said, 1973, comes out of the Vietnam War. What was it intended to do?
JAMIN RASKIN, American University's Washington College of Law: Well, Congress was interested in restraining what it saw as an imperial presidency. And, at that point, of course, it was Richard Nixon. And they saw him as someone who'd been pursuing aggressively, along with prior presidents, an undeclared, unauthorized war in Vietnam.
And the dilemma they saw was that if presidents could get the country into war without a congressional declaration Congress would never be able to pull the country out, because the refrain would be, you have got to support the troops.
So, their thought was, either we should be declaring a war or we will give a limited window, this 60-day window, for the president to initiate hostilities, that it would -- that the president would notify Congress of after 48 hours, and then would have to get out within 60 days unless there was an intervening authorization by Congress of the conflict.
Most presidents have sort of dodged the legal authority of the War Powers Resolution.
JEFFREY BROWN: What does dodged mean?
JAMIN RASKIN: Well...
JEFFREY BROWN: I mean, they have pushed back, they have ignored or pushed...
JAMIN RASKIN: Some have asserted it's unconstitutional.
JEFFREY BROWN: Right.
JAMIN RASKIN: Others have filed reports -- many have filed reports in compliance with it, but they say that it's not pursuant to the War Powers Act, but it's consistent with the War Powers Resolution.
And I noticed that the Obama letter also uses the language about consistency with the War Powers Resolution. But what's interesting to me is that the president today didn't cast doubt on the constitutionality of the War Powers Resolution. He's doing whatever he can to avoid a head-on collusion with Congress.
He's simply saying that the current conflict doesn't rise to the level of hostilities within the meaning of the War Powers Resolution. And that argument appears to have been worked out by Harold Koh, who is a key lawyer in managing this war effort.
The question becomes, is President Obama conducting a "war" when we have no troops "on the ground" and it's being lead by NATO?
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