Saturday, June 18, 2011
JB
Charlie Savage writes that President Obama took the unusual step of overruling the head of the Justice Department's Office of Legal Counsel and the top counsel for the Defense Department in order to conclude that the U.S.'s participation in the war in Libya did not amount to "hostilities or "imminent hostilities." This meant that the 60 day clock in the War Powers Resolution did not continue to run. Hence, Obama was able to conclude that he was not in violation of the WPR's 60 day requirement because "hostilities" or "imminent hostilities" had not occurred since the beginning of April.
But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.
Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
It is instructive to compare President Obama's actions with those of his predecessor, George W. Bush, who sought legal justification for his decision to engage in waterboarding and other "enhanced interrogation techniques," which constituted torture. Bush wanted above all to be able to deny that he was violating the anti-torture statute and other laws and treaties. So he found a small group of lawyers in the OLC, headed by John Yoo, and asked for their opinions. This short-circuited the usual process through which the OLC collected views from various agencies and then used them to develop legal opinions for the executive branch. That is, Bush (assisted by his Vice-President, Dick Cheney) arranged matters so that decisions about waterboarding and enhanced interrogation techniques would be in the hands of lawyers he knew would tell him yes; the normal process of collating opinions was short-circuited and other lawyers were effectively frozen out.
Obama's practice is different, but it has disturbing similarities. Normally, Obama would have asked the OLC for its opinion, and as noted above, the OLC would have polled legal expertise in various agencies, consulted its precedents, had long discussions, and then come up with a scholarly opinion that is normally binding on the executive branch. Instead, Obama routed around the OLC, asking for opinions from various lawyers, including the White House Counsel and the Attorney-Advisor for the State Department. It is difficult to escape the conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC.
Obama's strategy, like Bush's, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.
By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC's function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC's. If one is disturbed by Bush's misuse of the process for vetting legal questions, one should be equally disturbed by Obama's irregular procedures.
Lest I be misunderstood, let me make clear that there is no single way that the Executive Branch has to be organized. The Constitution does not speak to it. George Washington consulted various cabinet members about the constitutionality of the First Bank of the United States, finally settling on the views of his Treasury Secretary, Alexander Hamilton. But this was early in the nation's history, and long before the creation of the Justice Department following the Civil War and the creation of the OLC itself in the twentieth century.
Moreover, the practice of having the OLC serve as the canvasser of legal opinions from various parts of the executive branch, and the custom of treating the OLC's opinions-- reached after ample deliberation--as binding on the executive branch is not constitutionally required. The President may disregard the OLC without violating the Constitution.
However, there are good reasons why these practices and customs were implemented. They were designed to prevent Presidents from treating their lawyers like so many guests at a cocktail party that they can causally survey in order to pick out their friends. These procedures exist because there is almost always a prominent and skillful lawyer in the Administration who will tell the President pretty much what he wants to hear.
The OLC's procedures are designed to prevent precisely this sort of cherry picking. If the President can simply canvas the opinions of enough such lawyers he is not restrained very much by the law. Indeed, it is particularly relevant here that one of the lawyers who supported the President's position on Libya is the White House Counsel. The White House Counsel's office, as it has developed over time, is much closer to the political arm of the President's operations, and much much less likely ever to cross the President. White House Counsels who do not facilitate the President's political goals do not remain long as White House Counsels. Not surprisingly, the White House Counsel's office does not have the same academic or judicious traditions of the OLC. Whether or not one thinks that the OLC is likely to say yes to the President simply because it sits in the Justice Department, the White House Counsel's office is likely to be ten times more flexible.
The fact that Obama is a former professor of constitutional law does not justify his scuttling practices that are designed, over long periods of time, to improve legal deliberations and help ensure that presidents conform to the law. Former professors of constitutional law, like current ones, have been known to disagree among themselves about what the law requires; they have even been known to make mistakes and engage in serious misjudgments.
The fact that Obama may think he is smarter and more learned than George W. Bush also does not justify his practice. The next President, or the one after that, may think themselves smarter than Obama. They will certainly find a group of able lawyers somewhere in their Administration to tell them so. Obama came into office promising to reform the abuses of the Bush Administration and its manipulation of the OLC. The best way to do that is not to create entirely new abuses of one's own.
Saturday, June 18, 2011
President Obama Rejected DOJ and DOD Advice, and Sided with Harold Koh, on War Powers Resolution
LawFare
by Jack Goldsmith
Charlie Savage has the amazing story that President Obama “rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization.” The Acting head of the Office of Legal Counsel, Caroline Krass, and the General Counsel of the Department of Defense, Jeh Johnson, advised the President that military activities in Libya constituted “hostilities” under the War Powers Resolution and thus Section 5(b) of the WPR required him to terminate or scale back the mission after May 20. The President – himself a lawyer – rejected this advice and instead sided with the White House Counsel, Robert Bauer, and the State Department Legal Advisor, Harold Koh, who argued that the actions in Libya fell short of “hostilities” and thus did not implicate Section 5(b)’s termination provisions.
There are many things to say about this but here are a few quick reactions.
As Savage notes, the President has the authority under Article II to make legal determinations for the Executive branch. The process by which he reached this decision, however, was very unusual. The typical (and in my view best) process is for OLC to solicit the views of interested agencies and then offer its interpretation in a written opinion; then the President can, if he wishes, reject that considered OLC interpretation based on his independent judgment. This process has the virtue of placing the presumptive legal decision in the office – OLC – that is institutionally best suited to provide relatively detached legal advice to the President as well as the advice most consonant with Executive branch precedents and traditions. (I am not naïve about how detached OLC is, nor do I think it should be entirely detached; my complex views on this issue are laid out in The Terror Presidency and are summarized on pp. 195-97 of this essay.) OLC is also the government’s institutional expert on interpretations of the WPR. And it has not, traditionally, taken a narrow view of the WPR.
In the Libya decision, however, the typical process was not followed. As Savage explains:
The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.
In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.
This is not a process designed to produce a sound legal decision. (In the NYT story, former OLC chief Walter Dellinger makes a similar point.) When the President effectively decides the legal question in the first instance based on the input of interested agencies, his legal judgment is inevitably skewed a great deal by wanting to uphold his policy. OLC (and any executive branch lawyer) faces this danger to some degree, but the danger is less pronounced when the initial decision is made in a relatively independent legal office in DOJ as compared to the Oval Office. And indeed in this instance, for reasons I explained here, the best reading of the law was clearly the one that OLC (and DOD) apparently gave the President.
It is interesting and unusual enough that President Obama, of all people, would take an aggressive view of his war authorities and interpret the WPR very narrowly. But the lawyers he relied on to reach this conclusion make the situation even more interesting and unusual. I discount the legal input of the White House Counsel; Bob Bauer is a smart man but neither he nor his office is expert in war powers or situated to offer thorough legal advice on the issue. Legal Advisor Harold Koh, by contrast, spent his entire academic career studying and writing about presidential war powers, including the WPR. Based on this academic record, one would not have expected Koh to push an unusually narrow interpretation of the WPR. Nor would one have expected him to have supported the original constitutional justification for unilateral presidential intervention in Libya. To get a flavor of what one might have expected, consider what Koh’s former colleague Bruce Ackerman said in support of his nomination to lead State-L:
This is the real importance of the Koh nomination. President Obama has selected one of the few lawyers who probed deeply into the constitutional implications of presidential unilateralism and how it might be controlled. Koh would be taking his position as legal adviser at one of the rare moments when it might be politically possible to consider a National Security Charter that aims to restore an effective system of checks and balances.
This is not how things have worked out. One wonders why. One possibility is that Koh has a client, the Secretary of State, who is committed to the Libya intervention, and he is serving his client faithfully. Another possibility is that Koh’s commitments to humanitarian intervention and the “responsibility to protect” outweigh his commitment to his academic vision of presidential war powers. I certainly do not believe that Koh’s academic views should control his advice and judgment during his government service. Nor do I think that his academic writings addressed the precise issue under the WPR that he is now advocating in the government. But for a quarter century before heading up State-L, Koh was the leading and most vocal academic critic of presidential unilateralism in war, and a tireless advocate for institutional cooperation between the political branches in war decisions. I am thus genuinely surprised, as many people are, by his current stance.
This episode makes me wonder how all of this is being taken by the U.S. military. It must be strange to many involved in Operation Odyssey Dawn to be told that not only are they not involved in “war,” they are not even involved in “hostilities.” A midshipman at the Naval Academy wrote to Tom Ricks to say, in light of the original unilateral resort to force in Libya, that he wondered whether the soldiers fighting in Libya “are breaking their oath to obey only legal orders.” I think this is a large overreaction to the initial use of force. And despite my views of the WPR here, I do not think that disobedience would be a proper reaction to the President’s decision under the WPR. The President gets to make the call and his decision is not so far out of bounds to warrant disobedience. But it cannot be pleasant for the men and women involved in this “kinetic military action” to know that the Defense Department General Counsel and the head of OLC think the intervention in Libya as currently executed is unlawful.
Update: Jack Balkin makes similar but more amplified points about the importance of process here.
by Jack Goldsmith
Charlie Savage has the amazing story that President Obama “rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization.” The Acting head of the Office of Legal Counsel, Caroline Krass, and the General Counsel of the Department of Defense, Jeh Johnson, advised the President that military activities in Libya constituted “hostilities” under the War Powers Resolution and thus Section 5(b) of the WPR required him to terminate or scale back the mission after May 20. The President – himself a lawyer – rejected this advice and instead sided with the White House Counsel, Robert Bauer, and the State Department Legal Advisor, Harold Koh, who argued that the actions in Libya fell short of “hostilities” and thus did not implicate Section 5(b)’s termination provisions.
There are many things to say about this but here are a few quick reactions.
As Savage notes, the President has the authority under Article II to make legal determinations for the Executive branch. The process by which he reached this decision, however, was very unusual. The typical (and in my view best) process is for OLC to solicit the views of interested agencies and then offer its interpretation in a written opinion; then the President can, if he wishes, reject that considered OLC interpretation based on his independent judgment. This process has the virtue of placing the presumptive legal decision in the office – OLC – that is institutionally best suited to provide relatively detached legal advice to the President as well as the advice most consonant with Executive branch precedents and traditions. (I am not naïve about how detached OLC is, nor do I think it should be entirely detached; my complex views on this issue are laid out in The Terror Presidency and are summarized on pp. 195-97 of this essay.) OLC is also the government’s institutional expert on interpretations of the WPR. And it has not, traditionally, taken a narrow view of the WPR.
In the Libya decision, however, the typical process was not followed. As Savage explains:
The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.
In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.
This is not a process designed to produce a sound legal decision. (In the NYT story, former OLC chief Walter Dellinger makes a similar point.) When the President effectively decides the legal question in the first instance based on the input of interested agencies, his legal judgment is inevitably skewed a great deal by wanting to uphold his policy. OLC (and any executive branch lawyer) faces this danger to some degree, but the danger is less pronounced when the initial decision is made in a relatively independent legal office in DOJ as compared to the Oval Office. And indeed in this instance, for reasons I explained here, the best reading of the law was clearly the one that OLC (and DOD) apparently gave the President.
It is interesting and unusual enough that President Obama, of all people, would take an aggressive view of his war authorities and interpret the WPR very narrowly. But the lawyers he relied on to reach this conclusion make the situation even more interesting and unusual. I discount the legal input of the White House Counsel; Bob Bauer is a smart man but neither he nor his office is expert in war powers or situated to offer thorough legal advice on the issue. Legal Advisor Harold Koh, by contrast, spent his entire academic career studying and writing about presidential war powers, including the WPR. Based on this academic record, one would not have expected Koh to push an unusually narrow interpretation of the WPR. Nor would one have expected him to have supported the original constitutional justification for unilateral presidential intervention in Libya. To get a flavor of what one might have expected, consider what Koh’s former colleague Bruce Ackerman said in support of his nomination to lead State-L:
This is the real importance of the Koh nomination. President Obama has selected one of the few lawyers who probed deeply into the constitutional implications of presidential unilateralism and how it might be controlled. Koh would be taking his position as legal adviser at one of the rare moments when it might be politically possible to consider a National Security Charter that aims to restore an effective system of checks and balances.
This is not how things have worked out. One wonders why. One possibility is that Koh has a client, the Secretary of State, who is committed to the Libya intervention, and he is serving his client faithfully. Another possibility is that Koh’s commitments to humanitarian intervention and the “responsibility to protect” outweigh his commitment to his academic vision of presidential war powers. I certainly do not believe that Koh’s academic views should control his advice and judgment during his government service. Nor do I think that his academic writings addressed the precise issue under the WPR that he is now advocating in the government. But for a quarter century before heading up State-L, Koh was the leading and most vocal academic critic of presidential unilateralism in war, and a tireless advocate for institutional cooperation between the political branches in war decisions. I am thus genuinely surprised, as many people are, by his current stance.
This episode makes me wonder how all of this is being taken by the U.S. military. It must be strange to many involved in Operation Odyssey Dawn to be told that not only are they not involved in “war,” they are not even involved in “hostilities.” A midshipman at the Naval Academy wrote to Tom Ricks to say, in light of the original unilateral resort to force in Libya, that he wondered whether the soldiers fighting in Libya “are breaking their oath to obey only legal orders.” I think this is a large overreaction to the initial use of force. And despite my views of the WPR here, I do not think that disobedience would be a proper reaction to the President’s decision under the WPR. The President gets to make the call and his decision is not so far out of bounds to warrant disobedience. But it cannot be pleasant for the men and women involved in this “kinetic military action” to know that the Defense Department General Counsel and the head of OLC think the intervention in Libya as currently executed is unlawful.
Update: Jack Balkin makes similar but more amplified points about the importance of process here.
White House Clarifies Position on Libya and the WPR: US Forces Not Engaged in “Hostilities”
LawFare
by Robert Chesney
Charlie Savage at the NY Times has just reported that the White House is today providing Congress with information on ongoing operations in Libya, including an explanation of the Administration’s position as to why the continuation of the operation beyond 60 days does not violate the War Powers Resolution. The core of the argument, as I understand it, is that current operations do not constitute “hostilities” within the particular meaning of that term as used in the WPR. Does that make sense? It at least has a strong foundation in the past practice of the executive branch under the WPR. Here is some of the relevant background:
The argument begins with the point that the 60-day clock is triggered by the circumstances identified in WPR section 4(a)(1): i.e., U.S. armed forces either are introduced into “hostilities” or into circumstances where “hostilities are imminent.” That being so, the clock ceases to apply when those predicate conditions cease to be satisfied (i.e., US armed forces no longer are in hostlities or in circumstances where hostlities are imminent. Obviously, then, much hinges on the best interpretation of the WPR’s use of the word “hostilities.”
Since the mid-70s, the executive branch on several occasions has weighed in on this issue, taking a fairly consistent view. Here are the highlights as I understand them (if readers feel I’ve misread these or left out something important, I’ll be glad to update):
1975 – The Ford Administration, in the person of the State Department’s Legal Advisor and the Defense Department General Counsel, wrote to Congress that “hostilities” refers to a situation in which U.S. forces are “actively engaged in exchanges of fire with opposing units.”
1980 – The Carter Administration’s Office of Legal Counsel adopts that same definition, and adds that exchanges of fire must be more than merely intermittent or sporadic. The idea is “full military engagement,” not deployments in which U.S. forces from time to time come under limited fire.
1983 – The Reagan Administration declines to treat the WPR as applicable to the deployment of Marines to Lebanon, even after the barracks bombing. A Senate Report insisted that at least after the bombing, the hostilities condition was satisfied, but the Reagan Administration responded that such violence was too episodic to count for WPR purposes.
1993 – The Clinton Administration, with troops on the ground in Somalia from time to time conducting strike operations, writes to Congress to assert that “intermittent military engagements,” in contrast to “sustained hostilities,” did not suffice to keep the clock running (though a report was filed after an initial strike). Some legislators object, but in any event the Clinton Administration did not withdraw after 60 days.
1995 – The Clinton Administration files separate WPR reports after specific strikes in Bosnia, but does not treat each strike as starting the clock. The underlying theory presumably was that the strikes were too intermittent to generate a sustained state of WPR hostilities.
From that perspective, it’s not hard to see how the Administration comes to the view that the current state of US involvement in Libya–i.e., no boots on the ground, no manned aircraft flying combat missions and thus putting pilots in harm’s way as a theoretical matter, UAVs conducting combat missions only sporadically and with seemingly low intensity (isolated strikes on specific vehicles, that sort of thing), and manned aircraft otherwise conducting only support missions like refeuling and jamming–taken as a whole fails to come within the scope of the WPR’s requirements.
That’s not to say it’s an unassailable argument. For one thing, some no doubt would not give as much weight to executive branch interpretations as would, well, the executive branch. And there is the complication of Admiral Stavridis, an American officer, in command of NATO forces from other countries that are engaged on a much more sustained basis in “exchanges of fire.” But as Rick Pildes says in Charlie’s story, it’s not likely in any event that courts are going to weigh in on the matter (As Jack points out below, the Kucinich suit is a non-starter). The question instead will remain largely in the political sphere, with today’s arguments by the executive branch at least benefitting from continuity with the interpretations offered by past administrations of both parties.
by Robert Chesney
Charlie Savage at the NY Times has just reported that the White House is today providing Congress with information on ongoing operations in Libya, including an explanation of the Administration’s position as to why the continuation of the operation beyond 60 days does not violate the War Powers Resolution. The core of the argument, as I understand it, is that current operations do not constitute “hostilities” within the particular meaning of that term as used in the WPR. Does that make sense? It at least has a strong foundation in the past practice of the executive branch under the WPR. Here is some of the relevant background:
The argument begins with the point that the 60-day clock is triggered by the circumstances identified in WPR section 4(a)(1): i.e., U.S. armed forces either are introduced into “hostilities” or into circumstances where “hostilities are imminent.” That being so, the clock ceases to apply when those predicate conditions cease to be satisfied (i.e., US armed forces no longer are in hostlities or in circumstances where hostlities are imminent. Obviously, then, much hinges on the best interpretation of the WPR’s use of the word “hostilities.”
Since the mid-70s, the executive branch on several occasions has weighed in on this issue, taking a fairly consistent view. Here are the highlights as I understand them (if readers feel I’ve misread these or left out something important, I’ll be glad to update):
1975 – The Ford Administration, in the person of the State Department’s Legal Advisor and the Defense Department General Counsel, wrote to Congress that “hostilities” refers to a situation in which U.S. forces are “actively engaged in exchanges of fire with opposing units.”
1980 – The Carter Administration’s Office of Legal Counsel adopts that same definition, and adds that exchanges of fire must be more than merely intermittent or sporadic. The idea is “full military engagement,” not deployments in which U.S. forces from time to time come under limited fire.
1983 – The Reagan Administration declines to treat the WPR as applicable to the deployment of Marines to Lebanon, even after the barracks bombing. A Senate Report insisted that at least after the bombing, the hostilities condition was satisfied, but the Reagan Administration responded that such violence was too episodic to count for WPR purposes.
1993 – The Clinton Administration, with troops on the ground in Somalia from time to time conducting strike operations, writes to Congress to assert that “intermittent military engagements,” in contrast to “sustained hostilities,” did not suffice to keep the clock running (though a report was filed after an initial strike). Some legislators object, but in any event the Clinton Administration did not withdraw after 60 days.
1995 – The Clinton Administration files separate WPR reports after specific strikes in Bosnia, but does not treat each strike as starting the clock. The underlying theory presumably was that the strikes were too intermittent to generate a sustained state of WPR hostilities.
From that perspective, it’s not hard to see how the Administration comes to the view that the current state of US involvement in Libya–i.e., no boots on the ground, no manned aircraft flying combat missions and thus putting pilots in harm’s way as a theoretical matter, UAVs conducting combat missions only sporadically and with seemingly low intensity (isolated strikes on specific vehicles, that sort of thing), and manned aircraft otherwise conducting only support missions like refeuling and jamming–taken as a whole fails to come within the scope of the WPR’s requirements.
That’s not to say it’s an unassailable argument. For one thing, some no doubt would not give as much weight to executive branch interpretations as would, well, the executive branch. And there is the complication of Admiral Stavridis, an American officer, in command of NATO forces from other countries that are engaged on a much more sustained basis in “exchanges of fire.” But as Rick Pildes says in Charlie’s story, it’s not likely in any event that courts are going to weigh in on the matter (As Jack points out below, the Kucinich suit is a non-starter). The question instead will remain largely in the political sphere, with today’s arguments by the executive branch at least benefitting from continuity with the interpretations offered by past administrations of both parties.
Anger ramps up in Congress over Obama’s legal defense of Libya operation
Washington Post
By David A. Fahrenthold and Peter Finn, Sunday, June 19, 4:37 AM
On Capitol Hill, legislators who disagree with President Obama’s legal defense of the military operation in Libya will have two options when they resume their session this week. They could try to cut off funding for the campaign, or they could formally register their disapproval that Obama did it without congressional say-so.
The first tactic has rarely worked in U.S. history.
And the second one hasn’t worked on Obama so far.
Unhappiness in Congress was magnified Saturday by a report that Obama ignored some of his legal counselors when he decided last week that the Libya campaign should not be counted as “hostilities.”
That decision allowed him to bypass the 1973 War Powers Resolution, a law that requires presidents to report to Congress on any ongoing military conflict within a limited period of time. After receiving the report, Congress then has to decide whether to authorize the action taken.
On Saturday, sources familiar with the deliberations said Obama had not overruled a formal opinion from the Justice Department’s Office of Legal Counsel — because there wasn’t one. They can take months or a year to put together.
Instead, the sources said, advisers presented him with their opinions and he chose one that White House counsel and the State Department favored.
Still, many in Congress said they were not persuaded by Obama’s logic for avoiding a congressional debate over the three-month-old conflict.
“The president has had to go through legal contortions because he knows he faces a Congress that would not give him approval,” said Rep. Michael R. Turner (R-Ohio). He has proposed a resolution that would allow Congress to formally “disapprove” of the Libya operation. “This has to be stopped,” Turner said.
This week, the Libya debate will become a key test for House Speaker John A. Boehner (R-Ohio), who appears caught between his members and his own instincts. In the House, legislators from the ideological right and left have demanded a showdown with Obama. But Boehner has seemed wary of a confrontation. When members rallied around a bill to stop the campaign this month, he authored a resolution that gave Obama 14 more days to make his case.
Obama waited 12 days. And then, on Wednesday, he told Congress he didn’t need its permission.
“U.S. military operations [in Libya] are distinct from the kind of ‘hostilities’ contemplated by” the War Powers Resolution, a White House report said.
The logic was that U.S. forces are mainly limited to supply, logistics and intelligence missions — although American drones continue to attack Libyan targets.
On Saturday, sources said Obama had solicited opinions on the matter from the Pentagon, the State Department, White House counsel and the Office of Legal Counsel, which is set up to provide independent legal analysis.
Advisers from the Pentagon and the Office of Legal Counsel, the sources said, believed that the drone strikes required that the Libya operation be described as “hostilities.” Advisers from the State Department and the White House believed they should not.
Obama, trained as a constitutional lawyer, sided against the inclinations of the Pentagon and the Office of Legal Counsel. One source emphasized this was not an illegal, or even very extraordinary, outcome.
Eric Schultz, a White House spokesman, said that “there was a full airing of views within the administration and a robust process that led the president to his view.”
On Saturday, a New York Times report describing his decision making about Libya and the War Powers act further inflamed Obama’s critics on Capitol Hill. Rep. Thomas J. Rooney (R-Fla.) said the report had convinced him that Congress ought to cut off funds for the operation.
“Today, yes, I would” support that, Rooney said. He said he was troubled by the idea that “people inside the Pentagon . . . are saying one thing but then the administration is saying something different.”
But what is Congress prepared to do about it?
On Saturday, a spokesman for Boehner said the New York Times report “reinforces the need for the White House to answer the questions that Congress and the American people have about our involvement in Libya.”
But spokesman Michael Steel was noncommittal about Boehner’s next move. “That’s something we’ll discuss” with GOP legislators, he said.
The two party leaders in the Senate, Majority Leader Harry M. Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) were not available for comment on Libya on Saturday.
One option would be to hold a vote to approve or disapprove of the Libyan campaign, even if Obama has said Congress’s approval isn’t necessary.
Last week, two of Obama’s strongest allies on Libya — Sen. John McCain (R-Ariz.) and Sen. Richard J. Durbin (D-Ill.) — said they wanted such a vote. Durbin last week teamed with Sen. Benjamin L. Cardin (D-Md.) and introduced a resolution that would support the president’s Libyan actions but would set an end date of Dec. 30 and bar the introduction of U.S. ground troops, something Obama has said repeatedly he does not plan to do.
Another would be to seek to cut off funding for the operation. Rep. Dennis J. Kucinich (D-Ohio) said Saturday that he would introduce such a measure this week, when the House plans to consider a bill to fund the Pentagon.
That has happened before. In 1973, for instance, after a cease-fire had been agreed to in Vietnam, Congress voted to prohibit money being used to reintroduce troops into Southeast Asia.
In many cases, Congress has been leery about withdrawing money for troops already in harm’s way. That might still be true here, even though U.S. forces are not on the ground in Libya and face relatively little danger in the air.
Staff writers Scott Wilson, Jerry Markon, Felicia Sonmez, Walter Pincus and Ylan Q. Mui and staff researcher Julie Tate contributed to this report.
By David A. Fahrenthold and Peter Finn, Sunday, June 19, 4:37 AM
On Capitol Hill, legislators who disagree with President Obama’s legal defense of the military operation in Libya will have two options when they resume their session this week. They could try to cut off funding for the campaign, or they could formally register their disapproval that Obama did it without congressional say-so.
The first tactic has rarely worked in U.S. history.
And the second one hasn’t worked on Obama so far.
Unhappiness in Congress was magnified Saturday by a report that Obama ignored some of his legal counselors when he decided last week that the Libya campaign should not be counted as “hostilities.”
That decision allowed him to bypass the 1973 War Powers Resolution, a law that requires presidents to report to Congress on any ongoing military conflict within a limited period of time. After receiving the report, Congress then has to decide whether to authorize the action taken.
On Saturday, sources familiar with the deliberations said Obama had not overruled a formal opinion from the Justice Department’s Office of Legal Counsel — because there wasn’t one. They can take months or a year to put together.
Instead, the sources said, advisers presented him with their opinions and he chose one that White House counsel and the State Department favored.
Still, many in Congress said they were not persuaded by Obama’s logic for avoiding a congressional debate over the three-month-old conflict.
“The president has had to go through legal contortions because he knows he faces a Congress that would not give him approval,” said Rep. Michael R. Turner (R-Ohio). He has proposed a resolution that would allow Congress to formally “disapprove” of the Libya operation. “This has to be stopped,” Turner said.
This week, the Libya debate will become a key test for House Speaker John A. Boehner (R-Ohio), who appears caught between his members and his own instincts. In the House, legislators from the ideological right and left have demanded a showdown with Obama. But Boehner has seemed wary of a confrontation. When members rallied around a bill to stop the campaign this month, he authored a resolution that gave Obama 14 more days to make his case.
Obama waited 12 days. And then, on Wednesday, he told Congress he didn’t need its permission.
“U.S. military operations [in Libya] are distinct from the kind of ‘hostilities’ contemplated by” the War Powers Resolution, a White House report said.
The logic was that U.S. forces are mainly limited to supply, logistics and intelligence missions — although American drones continue to attack Libyan targets.
On Saturday, sources said Obama had solicited opinions on the matter from the Pentagon, the State Department, White House counsel and the Office of Legal Counsel, which is set up to provide independent legal analysis.
Advisers from the Pentagon and the Office of Legal Counsel, the sources said, believed that the drone strikes required that the Libya operation be described as “hostilities.” Advisers from the State Department and the White House believed they should not.
Obama, trained as a constitutional lawyer, sided against the inclinations of the Pentagon and the Office of Legal Counsel. One source emphasized this was not an illegal, or even very extraordinary, outcome.
Eric Schultz, a White House spokesman, said that “there was a full airing of views within the administration and a robust process that led the president to his view.”
On Saturday, a New York Times report describing his decision making about Libya and the War Powers act further inflamed Obama’s critics on Capitol Hill. Rep. Thomas J. Rooney (R-Fla.) said the report had convinced him that Congress ought to cut off funds for the operation.
“Today, yes, I would” support that, Rooney said. He said he was troubled by the idea that “people inside the Pentagon . . . are saying one thing but then the administration is saying something different.”
But what is Congress prepared to do about it?
On Saturday, a spokesman for Boehner said the New York Times report “reinforces the need for the White House to answer the questions that Congress and the American people have about our involvement in Libya.”
But spokesman Michael Steel was noncommittal about Boehner’s next move. “That’s something we’ll discuss” with GOP legislators, he said.
The two party leaders in the Senate, Majority Leader Harry M. Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) were not available for comment on Libya on Saturday.
One option would be to hold a vote to approve or disapprove of the Libyan campaign, even if Obama has said Congress’s approval isn’t necessary.
Last week, two of Obama’s strongest allies on Libya — Sen. John McCain (R-Ariz.) and Sen. Richard J. Durbin (D-Ill.) — said they wanted such a vote. Durbin last week teamed with Sen. Benjamin L. Cardin (D-Md.) and introduced a resolution that would support the president’s Libyan actions but would set an end date of Dec. 30 and bar the introduction of U.S. ground troops, something Obama has said repeatedly he does not plan to do.
Another would be to seek to cut off funding for the operation. Rep. Dennis J. Kucinich (D-Ohio) said Saturday that he would introduce such a measure this week, when the House plans to consider a bill to fund the Pentagon.
That has happened before. In 1973, for instance, after a cease-fire had been agreed to in Vietnam, Congress voted to prohibit money being used to reintroduce troops into Southeast Asia.
In many cases, Congress has been leery about withdrawing money for troops already in harm’s way. That might still be true here, even though U.S. forces are not on the ground in Libya and face relatively little danger in the air.
Staff writers Scott Wilson, Jerry Markon, Felicia Sonmez, Walter Pincus and Ylan Q. Mui and staff researcher Julie Tate contributed to this report.
On Obama legal stance on Libya
The Libya Debate Heats Up
http://blogs.cfr.org/lindsay/2011/06/14/the-libya-debate-heats-up/
Obama Answers Boehner on Libya
http://blogs.cfr.org/lindsay/2011/06/15/obama-answers-boehner-on-libya/
White House answer on Libya
http://s3.documentcloud.org/documents/204673/united-states-activities-in-libya-6-15-11.pdf
http://blogs.cfr.org/lindsay/2011/06/14/the-libya-debate-heats-up/
Obama Answers Boehner on Libya
http://blogs.cfr.org/lindsay/2011/06/15/obama-answers-boehner-on-libya/
White House answer on Libya
http://s3.documentcloud.org/documents/204673/united-states-activities-in-libya-6-15-11.pdf
2 Top Lawyers Lost to Obama in Libya War Policy Debate
NYtimes
June 17, 2011
By CHARLIE SAVAGE
WASHINGTON — President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.
Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.
But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.
Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
A White House spokesman, Eric Schultz, said there had been “a full airing of views within the administration and a robust process” that led Mr. Obama to his view that the Libya campaign was not covered by a provision of the War Powers Resolution that requires presidents to halt unauthorized hostilities after 60 days.
“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”
Still, the disclosure that key figures on the administration’s legal team disagreed with Mr. Obama’s legal view could fuel restiveness in Congress, where lawmakers from both parties this week strongly criticized the White House’s contention that the president could continue the Libya campaign without their authorization because the campaign was not “hostilities.”
The White House unveiled its interpretation of the War Powers Resolution in a package about Libya it sent to Congress late Wednesday. On Thursday, the House speaker, John A. Boehner, Republican of Ohio, demanded to know whether the Office of Legal Counsel had agreed.
“The administration gave its opinion on the War Powers Resolution, but it didn’t answer the questions in my letter as to whether the Office of Legal Counsel agrees with them,” he said. “The White House says there are no hostilities taking place. Yet we’ve got drone attacks under way. We’re spending $10 million a day. We’re part of an effort to drop bombs on Qaddafi’s compounds. It just doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities.”
A sticking point for some skeptics was whether any mission that included firing missiles from drone aircraft could be portrayed as not amounting to hostilities.
As the May 20 deadline approached, Mr. Johnson advocated stopping the drone strikes as a way to bolster the view that the remaining activities in support of NATO allies were not subject to the deadline, officials said. But Mr. Obama ultimately decided that there was no legal requirement to change anything about the military mission.
The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.
In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.
A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.
The theory Mr. Obama embraced holds that American forces have not been in “hostilities” as envisioned by the War Powers Resolution at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to a supporting role providing refueling assistance and surveillance — although remotely piloted American drones are still periodically firing missiles.
The administration has also emphasized that there are no troops on the ground, that Libyan forces are unable to fire at them meaningfully and that the military mission is constrained from escalating by a United Nations Security Council resolution.
That position has attracted criticism. Jack L. Goldsmith, who led the Office of Legal Counsel during the Bush administration, has written that the administration’s interpretation is “aggressive” and unpersuasive, although he also acknowledged that there was no clear answer and little chance of a definitive court ruling, so the reaction of Congress would resolve it.
Walter Dellinger, who led the Office of Legal Counsel during the Clinton administration, said that while “this is not an easy question,” Mr. Obama’s position was “both defensible and consistent with the position of previous administrations.” Still, he criticized the administration’s decision-making process.
“Decisions about the lawfulness of major presidential actions should be made by the Department of Justice, and within the department by the Office of Legal Counsel, after consultation with affected agencies,” he said. “The president always has the power of final decision.”
Other high-level Justice lawyers were also involved in the deliberations, and Attorney General Eric H. Holder Jr. supported Ms. Krass’s view, officials said.
Matthew Miller, a Justice Department spokesman, said, “Our views were heard, as were other views, and the president then made the decision as was appropriate for him to do.”
This article has been revised to reflect the following correction:
Correction: June 17, 2011
An earlier version of this article misspelled in one reference the surname of the Pentagon general counsel. He is Jeh C. Johnson, not Johnsen.
June 17, 2011
By CHARLIE SAVAGE
WASHINGTON — President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.
Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.
But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.
Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
A White House spokesman, Eric Schultz, said there had been “a full airing of views within the administration and a robust process” that led Mr. Obama to his view that the Libya campaign was not covered by a provision of the War Powers Resolution that requires presidents to halt unauthorized hostilities after 60 days.
“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”
Still, the disclosure that key figures on the administration’s legal team disagreed with Mr. Obama’s legal view could fuel restiveness in Congress, where lawmakers from both parties this week strongly criticized the White House’s contention that the president could continue the Libya campaign without their authorization because the campaign was not “hostilities.”
The White House unveiled its interpretation of the War Powers Resolution in a package about Libya it sent to Congress late Wednesday. On Thursday, the House speaker, John A. Boehner, Republican of Ohio, demanded to know whether the Office of Legal Counsel had agreed.
“The administration gave its opinion on the War Powers Resolution, but it didn’t answer the questions in my letter as to whether the Office of Legal Counsel agrees with them,” he said. “The White House says there are no hostilities taking place. Yet we’ve got drone attacks under way. We’re spending $10 million a day. We’re part of an effort to drop bombs on Qaddafi’s compounds. It just doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities.”
A sticking point for some skeptics was whether any mission that included firing missiles from drone aircraft could be portrayed as not amounting to hostilities.
As the May 20 deadline approached, Mr. Johnson advocated stopping the drone strikes as a way to bolster the view that the remaining activities in support of NATO allies were not subject to the deadline, officials said. But Mr. Obama ultimately decided that there was no legal requirement to change anything about the military mission.
The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.
In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.
A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.
The theory Mr. Obama embraced holds that American forces have not been in “hostilities” as envisioned by the War Powers Resolution at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to a supporting role providing refueling assistance and surveillance — although remotely piloted American drones are still periodically firing missiles.
The administration has also emphasized that there are no troops on the ground, that Libyan forces are unable to fire at them meaningfully and that the military mission is constrained from escalating by a United Nations Security Council resolution.
That position has attracted criticism. Jack L. Goldsmith, who led the Office of Legal Counsel during the Bush administration, has written that the administration’s interpretation is “aggressive” and unpersuasive, although he also acknowledged that there was no clear answer and little chance of a definitive court ruling, so the reaction of Congress would resolve it.
Walter Dellinger, who led the Office of Legal Counsel during the Clinton administration, said that while “this is not an easy question,” Mr. Obama’s position was “both defensible and consistent with the position of previous administrations.” Still, he criticized the administration’s decision-making process.
“Decisions about the lawfulness of major presidential actions should be made by the Department of Justice, and within the department by the Office of Legal Counsel, after consultation with affected agencies,” he said. “The president always has the power of final decision.”
Other high-level Justice lawyers were also involved in the deliberations, and Attorney General Eric H. Holder Jr. supported Ms. Krass’s view, officials said.
Matthew Miller, a Justice Department spokesman, said, “Our views were heard, as were other views, and the president then made the decision as was appropriate for him to do.”
This article has been revised to reflect the following correction:
Correction: June 17, 2011
An earlier version of this article misspelled in one reference the surname of the Pentagon general counsel. He is Jeh C. Johnson, not Johnsen.
White House Defends Continuing U.S. Role in Libya Operation
NYtimes
June 15, 2011
By CHARLIE SAVAGE and MARK LANDLER
WASHINGTON — The White House, pushing hard against criticism in Congress over the deepening air war in Libya, asserted Wednesday that President Obama had the authority to continue the military campaign without Congressional approval because American involvement fell short of full-blown hostilities.
In a 38-page report sent to lawmakers describing and defending the NATO-led operation, the White House said the mission was prying loose Col. Muammar el-Qaddafi’s grip on power.
In contending that the limited American role did not oblige the administration to ask for authorization under the War Powers Resolution, the report asserted that “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.” Still, the White House acknowledged, the operation has cost the Pentagon $716 million in its first two months and will have cost $1.1 billion by September at the current scale of operations.
The report came one day after the House Speaker, John A. Boehner, Republican of Ohio, had sent a letter to Mr. Obama warning him that he appeared to be out of time under the Vietnam-era law that says presidents must terminate a mission 60 or 90 days after notifying Congress that troops have been deployed into hostilities, unless lawmakers authorize the operation to continue.
Mr. Boehner had demanded that Mr. Obama explain his legal justification for passing the deadline. On Wednesday, Brendan Buck, a spokesman for Mr. Boehner, said he was still reviewing the documents, adding that “the creative arguments made by the White House raise a number of questions that must be further explored.”
The escalating confrontation with Congress reflects the radically altered political landscape in Washington: a Democratic president asserting sweeping executive powers to deploy American forces overseas, while Republicans call for stricter oversight and voice fears about executive-branch power getting the United States bogged down in a foreign war.
“We are acting lawfully,” said Harold H. Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with the White House counsel, Robert Bauer.
The two senior administration lawyers contended that American forces had not been in “hostilities” at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to primarily a supporting role — providing refueling and surveillance to allied warplanes, although remotely piloted drones operated by the United States periodically fire missiles, too.
They argued that United States forces are at little risk because there are no troops on the ground and Libyan forces are unable to exchange fire with them meaningfully. And they said the military mission was constrained by a United Nations Security Council resolution, which authorized air power for the purpose of defending civilians.
“We are not saying the president can take the country into war on his own,” said Mr. Koh, a former Yale Law School dean and outspoken critic of the Bush administration’s expansive theories of executive power. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”
Jack L. Goldsmith, who led the Justice Department’s Office of Legal Counsel during the Bush administration, said the Obama theory would set a precedent expanding future presidents’ unauthorized war-making powers, especially given the rise of remote-controlled combat technology.
“The administration’s theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution’s time limits,” Mr. Goldsmith said.
It remains to be seen whether majorities in Congress will acquiesce to the administration’s argument, defusing the confrontation, or if the theory will fuel greater criticism. Either way, because the statute does not define hostilities and the Supreme Court has never ruled on the issue, the debate is likely to be resolved politically, said Richard H. Pildes, a New York University law professor.
Also on Wednesday, 10 lawmakers — led by Representative Dennis J. Kucinich, Democrat of Ohio, and Representative Walter B. Jones, Republican of North Carolina — filed a lawsuit asking a judge to order Mr. Obama to pull out of the Libya operation because Congress did not authorize it. That lawsuit faces steep challenges, however, because courts in the past have dismissed similar cases on technical grounds.
The administration had earlier argued that Mr. Obama could initiate the intervention on his own authority as commander in chief because its anticipated nature, scope and duration fell short of a “war” in the constitutional sense. Since then, the conflict has dragged on for longer than expected, and the goal of the NATO allies has all but openly shifted from merely defending civilians to forcing the Libyan leader, Colonel Qaddafi, from power. But Mr. Koh and Mr. Bauer said that while regime change in Libya might be a diplomatic goal, the military’s mission was separate and remained limited to protecting civilians.
While many presidents have challenged the constitutionality of other aspects of the War Powers Resolution — which Congress enacted over President Richard M. Nixon’s veto — no administration has declared that the section imposing the 60-day clock is unconstitutional, and in 1980, the Justice Department’s Office of Legal Counsel concluded that it was within Congress’s power to enact such a limit.
Mr. Bauer and Mr. Koh said that the 1980 memorandum remained in force, but that their legal argument was not invoking any constitutional challenge to bolster their interpretation of hostilities.
It was not clear whether the Justice Department had endorsed the White House’s interpretation of hostilities. Mr. Bauer declined to say whether it had signed off on the theory, saying he would not discuss interagency deliberations. In his letter on Tuesday, Mr. Boehner demanded to know whether there was internal dissent about the administration’s legal stance.
Mr. Koh noted that there had been disputes about whether the 60-day clock of the War Powers Resolution (a deadline that can be extended for 30 days under some circumstances) applied to deployments in which — unlike in Libya — there were troops on the ground and American casualties.
Still, such previous cases involved peacekeeping missions in which the United States had been invited in, and there were only infrequent outbreaks of violence — as in Lebanon, Somalia and Bosnia. The Libyan operation, by contrast, is an offensive mission involving sustained bombardments of a government’s forces.
Jennifer Steinhauer contributed reporting.
June 15, 2011
By CHARLIE SAVAGE and MARK LANDLER
WASHINGTON — The White House, pushing hard against criticism in Congress over the deepening air war in Libya, asserted Wednesday that President Obama had the authority to continue the military campaign without Congressional approval because American involvement fell short of full-blown hostilities.
In a 38-page report sent to lawmakers describing and defending the NATO-led operation, the White House said the mission was prying loose Col. Muammar el-Qaddafi’s grip on power.
In contending that the limited American role did not oblige the administration to ask for authorization under the War Powers Resolution, the report asserted that “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.” Still, the White House acknowledged, the operation has cost the Pentagon $716 million in its first two months and will have cost $1.1 billion by September at the current scale of operations.
The report came one day after the House Speaker, John A. Boehner, Republican of Ohio, had sent a letter to Mr. Obama warning him that he appeared to be out of time under the Vietnam-era law that says presidents must terminate a mission 60 or 90 days after notifying Congress that troops have been deployed into hostilities, unless lawmakers authorize the operation to continue.
Mr. Boehner had demanded that Mr. Obama explain his legal justification for passing the deadline. On Wednesday, Brendan Buck, a spokesman for Mr. Boehner, said he was still reviewing the documents, adding that “the creative arguments made by the White House raise a number of questions that must be further explored.”
The escalating confrontation with Congress reflects the radically altered political landscape in Washington: a Democratic president asserting sweeping executive powers to deploy American forces overseas, while Republicans call for stricter oversight and voice fears about executive-branch power getting the United States bogged down in a foreign war.
“We are acting lawfully,” said Harold H. Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with the White House counsel, Robert Bauer.
The two senior administration lawyers contended that American forces had not been in “hostilities” at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to primarily a supporting role — providing refueling and surveillance to allied warplanes, although remotely piloted drones operated by the United States periodically fire missiles, too.
They argued that United States forces are at little risk because there are no troops on the ground and Libyan forces are unable to exchange fire with them meaningfully. And they said the military mission was constrained by a United Nations Security Council resolution, which authorized air power for the purpose of defending civilians.
“We are not saying the president can take the country into war on his own,” said Mr. Koh, a former Yale Law School dean and outspoken critic of the Bush administration’s expansive theories of executive power. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”
Jack L. Goldsmith, who led the Justice Department’s Office of Legal Counsel during the Bush administration, said the Obama theory would set a precedent expanding future presidents’ unauthorized war-making powers, especially given the rise of remote-controlled combat technology.
“The administration’s theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution’s time limits,” Mr. Goldsmith said.
It remains to be seen whether majorities in Congress will acquiesce to the administration’s argument, defusing the confrontation, or if the theory will fuel greater criticism. Either way, because the statute does not define hostilities and the Supreme Court has never ruled on the issue, the debate is likely to be resolved politically, said Richard H. Pildes, a New York University law professor.
Also on Wednesday, 10 lawmakers — led by Representative Dennis J. Kucinich, Democrat of Ohio, and Representative Walter B. Jones, Republican of North Carolina — filed a lawsuit asking a judge to order Mr. Obama to pull out of the Libya operation because Congress did not authorize it. That lawsuit faces steep challenges, however, because courts in the past have dismissed similar cases on technical grounds.
The administration had earlier argued that Mr. Obama could initiate the intervention on his own authority as commander in chief because its anticipated nature, scope and duration fell short of a “war” in the constitutional sense. Since then, the conflict has dragged on for longer than expected, and the goal of the NATO allies has all but openly shifted from merely defending civilians to forcing the Libyan leader, Colonel Qaddafi, from power. But Mr. Koh and Mr. Bauer said that while regime change in Libya might be a diplomatic goal, the military’s mission was separate and remained limited to protecting civilians.
While many presidents have challenged the constitutionality of other aspects of the War Powers Resolution — which Congress enacted over President Richard M. Nixon’s veto — no administration has declared that the section imposing the 60-day clock is unconstitutional, and in 1980, the Justice Department’s Office of Legal Counsel concluded that it was within Congress’s power to enact such a limit.
Mr. Bauer and Mr. Koh said that the 1980 memorandum remained in force, but that their legal argument was not invoking any constitutional challenge to bolster their interpretation of hostilities.
It was not clear whether the Justice Department had endorsed the White House’s interpretation of hostilities. Mr. Bauer declined to say whether it had signed off on the theory, saying he would not discuss interagency deliberations. In his letter on Tuesday, Mr. Boehner demanded to know whether there was internal dissent about the administration’s legal stance.
Mr. Koh noted that there had been disputes about whether the 60-day clock of the War Powers Resolution (a deadline that can be extended for 30 days under some circumstances) applied to deployments in which — unlike in Libya — there were troops on the ground and American casualties.
Still, such previous cases involved peacekeeping missions in which the United States had been invited in, and there were only infrequent outbreaks of violence — as in Lebanon, Somalia and Bosnia. The Libyan operation, by contrast, is an offensive mission involving sustained bombardments of a government’s forces.
Jennifer Steinhauer contributed reporting.
Tuesday, June 14, 2011
Success worth paying for in Afghanistan
Washington Post
http://www.washingtonpost.com/opinions/success-worth-paying-for-in-afghanistan/2011/06/01/AGwGGZHH_print.html
By Michael O’Hanlon,
America’s political debate has turned to government spending, debt and the country’s long-term economic health. Many rightly view the military budget as an important ingredient in any deficit-reduction plan. But some have extended this logic to the war in Afghanistan, with even administration insiders telling The Post that spending has gone too high and that costs will influence President Obama’s decision about how quickly to start withdrawing troops next month. Their ranks are bolstered by outside strategists who argue that spending so much on distant, poor Afghanistan leaves us unable to invest properly in other areas.
This is an understandable but incorrect way of viewing the Afghan war. Regardless of Obama’s choices this summer, total costs of the war will exceed half a trillion dollars. Those favoring a more rapid drawdown than do most field commanders would be able to save at most 15 percent in total costs, while jeopardizing the campaign’s future. Losing the war could give al-Qaeda its largest sanctuary — an undesirable development even after the demise of Osama bin Laden — and also provide sanctuaries for groups such as the Pakistani Taliban and Lashkar i-Taiba. Moreover, we tried fighting this war on the cheap, from 2002 to 2005, and the result was a revival of the insurgency.
True, the war’s course has been extremely difficult. Many news reports focus on suicide bombings or government corruption. Even relative success, defined as a future Afghan government that can control most of its territory with little outside help, is not guaranteed. But evidence is mounting that our military strategy is working — and rapid troop drawdowns this summer and fall are not consistent with the plan.
That plan, in a nutshell: In 2011, consolidate increasingly secure areas in Afghanistan’s south while fending off an expected Taliban counteroffensive that, while likely to be hamstrung by the NATO/Afghan government progress of the past year, could still be potent. Assassination campaigns and spectacular bombings can be expected to pose particular threats even if overall battlefield dynamics are turning the way of coalition forces from Kabul to Kandahar to Helmand. In 2012, increasingly turn over responsibilities for security in the south to rapidly improving Afghan army and police forces while bolstering U.S. efforts in the east. In 2013 and 2014, accelerate foreign troop drawdowns as Afghan forces reach full capability and as the insurgency has been considerably weakened. Throughout all this, continue work on Afghan economic development and government capacity while supporting President Hamid Karzai’s efforts at realistic peace talks with the Afghan insurgency.
The strategy has weak points, especially at the political level. Washington is having a hard time motivating Pakistan to go after insurgent sanctuaries on its soil, and we lack an adequate plan for supporting Afghan political development as the country moves toward presidential elections in 2014. But the military effort increasingly shows results. In the country’s south, for instance, at least 10 percent more Afghans consider roads secure than did a year ago; most government officials in the south now travel by road rather than NATO helicopter; the number of schools open in Helmand province has increased by 50 percent since late 2009; Afghan army and police contributions to recent offensives in the south have been about half of all necessary coalition forces; and poppy production is down by half over the past three years.
To be sure, the war is not cheap. The Congressional Research Service puts U.S. costs through this summer at around $444 billion since 2001. That includes some $25 billion for Afghan security forces and $25 billion in economic development efforts. Current strategy implies another year (starting Oct. 1) of total American costs over $100 billion. It is realistic to expect that fiscal 2013 costs might be $75 billion and 2014 costs around $50 billion, as NATO prepares to hand off responsibility to the Afghan government nationwide and dramatically reduce its presence. More modest annual costs thereafter would still push the combined American investment over $700 billion, rivaling the prices of the wars in Korea and Iraq.
That’s a lot of money. But next to a national debt of $14 trillion, it hardly looks astronomical. And the costs look even more reasonable measured against the costs of defeat — defined as a Taliban takeover of at least southern Afghanistan; and associated sanctuaries for the world’s worst terrorist groups, which still want to strike American cities, gain control of Pakistan’s nuclear arsenal and provoke another India-Pakistan war. Measured against the likely alternative costs, at this point the incremental cost of sustaining the current strategy to its logical conclusion is within reason. We’re already committed to spending $444 billion; no big savings are feasible this summer regardless of the president’s July decision. Even adopting a “counterterrorism plus” strategy similar to what the vice president purportedly favors would keep an average of perhaps 50,000 U.S. troops in Afghanistan over the coming year, 30,000 the following year and 20,000 in the country thereafter, indefinitely. By the rule of thumb that keeping an American soldier in Afghanistan for a year costs about $1 million, the cumulative expenses approach $600 billion by 2016 or so.
If a war’s failure is inevitable, we must of course focus on the people and resources that could be saved by terminating a hopeless endeavor. But after a decade of learning by American strategists and policymakers, the Afghanistan campaign is on a much better track. While no sterling success seems likely, a reasonable outcome is probably within reach: preventing that country from again being the most dangerous terrorist sanctuary on Earth, if we stay patient over the next two to three years and carry out troop drawdowns gradually.
Michael O’Hanlon, a senior fellow at the Brookings Institution, co-authors Brookings’ Afghanistan index. He is co-author of “Toughing It Out in Afghanistan” and “Toward a Political Strategy for Afghanistan.”
© The Washington Post Company
http://www.washingtonpost.com/opinions/success-worth-paying-for-in-afghanistan/2011/06/01/AGwGGZHH_print.html
By Michael O’Hanlon,
America’s political debate has turned to government spending, debt and the country’s long-term economic health. Many rightly view the military budget as an important ingredient in any deficit-reduction plan. But some have extended this logic to the war in Afghanistan, with even administration insiders telling The Post that spending has gone too high and that costs will influence President Obama’s decision about how quickly to start withdrawing troops next month. Their ranks are bolstered by outside strategists who argue that spending so much on distant, poor Afghanistan leaves us unable to invest properly in other areas.
This is an understandable but incorrect way of viewing the Afghan war. Regardless of Obama’s choices this summer, total costs of the war will exceed half a trillion dollars. Those favoring a more rapid drawdown than do most field commanders would be able to save at most 15 percent in total costs, while jeopardizing the campaign’s future. Losing the war could give al-Qaeda its largest sanctuary — an undesirable development even after the demise of Osama bin Laden — and also provide sanctuaries for groups such as the Pakistani Taliban and Lashkar i-Taiba. Moreover, we tried fighting this war on the cheap, from 2002 to 2005, and the result was a revival of the insurgency.
True, the war’s course has been extremely difficult. Many news reports focus on suicide bombings or government corruption. Even relative success, defined as a future Afghan government that can control most of its territory with little outside help, is not guaranteed. But evidence is mounting that our military strategy is working — and rapid troop drawdowns this summer and fall are not consistent with the plan.
That plan, in a nutshell: In 2011, consolidate increasingly secure areas in Afghanistan’s south while fending off an expected Taliban counteroffensive that, while likely to be hamstrung by the NATO/Afghan government progress of the past year, could still be potent. Assassination campaigns and spectacular bombings can be expected to pose particular threats even if overall battlefield dynamics are turning the way of coalition forces from Kabul to Kandahar to Helmand. In 2012, increasingly turn over responsibilities for security in the south to rapidly improving Afghan army and police forces while bolstering U.S. efforts in the east. In 2013 and 2014, accelerate foreign troop drawdowns as Afghan forces reach full capability and as the insurgency has been considerably weakened. Throughout all this, continue work on Afghan economic development and government capacity while supporting President Hamid Karzai’s efforts at realistic peace talks with the Afghan insurgency.
The strategy has weak points, especially at the political level. Washington is having a hard time motivating Pakistan to go after insurgent sanctuaries on its soil, and we lack an adequate plan for supporting Afghan political development as the country moves toward presidential elections in 2014. But the military effort increasingly shows results. In the country’s south, for instance, at least 10 percent more Afghans consider roads secure than did a year ago; most government officials in the south now travel by road rather than NATO helicopter; the number of schools open in Helmand province has increased by 50 percent since late 2009; Afghan army and police contributions to recent offensives in the south have been about half of all necessary coalition forces; and poppy production is down by half over the past three years.
To be sure, the war is not cheap. The Congressional Research Service puts U.S. costs through this summer at around $444 billion since 2001. That includes some $25 billion for Afghan security forces and $25 billion in economic development efforts. Current strategy implies another year (starting Oct. 1) of total American costs over $100 billion. It is realistic to expect that fiscal 2013 costs might be $75 billion and 2014 costs around $50 billion, as NATO prepares to hand off responsibility to the Afghan government nationwide and dramatically reduce its presence. More modest annual costs thereafter would still push the combined American investment over $700 billion, rivaling the prices of the wars in Korea and Iraq.
That’s a lot of money. But next to a national debt of $14 trillion, it hardly looks astronomical. And the costs look even more reasonable measured against the costs of defeat — defined as a Taliban takeover of at least southern Afghanistan; and associated sanctuaries for the world’s worst terrorist groups, which still want to strike American cities, gain control of Pakistan’s nuclear arsenal and provoke another India-Pakistan war. Measured against the likely alternative costs, at this point the incremental cost of sustaining the current strategy to its logical conclusion is within reason. We’re already committed to spending $444 billion; no big savings are feasible this summer regardless of the president’s July decision. Even adopting a “counterterrorism plus” strategy similar to what the vice president purportedly favors would keep an average of perhaps 50,000 U.S. troops in Afghanistan over the coming year, 30,000 the following year and 20,000 in the country thereafter, indefinitely. By the rule of thumb that keeping an American soldier in Afghanistan for a year costs about $1 million, the cumulative expenses approach $600 billion by 2016 or so.
If a war’s failure is inevitable, we must of course focus on the people and resources that could be saved by terminating a hopeless endeavor. But after a decade of learning by American strategists and policymakers, the Afghanistan campaign is on a much better track. While no sterling success seems likely, a reasonable outcome is probably within reach: preventing that country from again being the most dangerous terrorist sanctuary on Earth, if we stay patient over the next two to three years and carry out troop drawdowns gradually.
Michael O’Hanlon, a senior fellow at the Brookings Institution, co-authors Brookings’ Afghanistan index. He is co-author of “Toughing It Out in Afghanistan” and “Toward a Political Strategy for Afghanistan.”
© The Washington Post Company
Panetta: Yemeni Support for Counterterrorism Persists, Despite Instability
Friday, June 10, 2011
By Elaine M. Grossman
Global Security Newswire
WASHINGTON -- Political chaos and social unrest in Yemen have not hindered that nation's cooperation with the United States in countering terrorist activities, CIA Director Leon Panetta told a congressional panel on Thursday (see GSN, June 7).
(Jun. 10) - Yemeni soldiers aligned with antigovernment protesters chant slogans on Friday during a demonstration demanding the resignation of Yemeni President Ali Abdullah Saleh, who was injured in a recent attack. Instability in Yemen has not obstructed the Middle Eastern nation's cooperation with Washington on counterterrorism activities, CIA Director Leon Panetta said on Thursday (Ahmad Gharbali/Getty Images).
Testifying at a confirmation hearing to become the nation's next Defense secretary, Panetta appeared to suggest that Yemen's assistance has continued even after President Ali Abdullah Saleh was injured in a June 3 attack on his compound.
The blast killed seven people and wounded several senior officials. Saleh left the country a day later for medical treatment in Saudi Arabia. He was reportedly being treated for an injury to the head and burns over 40 percent of his body.
Yemen has "been destabilized and yet, we are continuing to work with those individuals in their government to try to go after AQAP," said Panetta, using an acronym for al-Qaeda in the Arabian Peninsula. The Yemen-based group is an affiliate of al-Qaeda that has repeatedly plotted attacks against the United States.
The explosion at a mosque inside the presidential palace came amid a 4-month-old uprising that has failed to dislodge the U.S. partner from his leadership post. It remains unclear who was responsible for the attack.
Saleh's departure after three decades of rule left a power vacuum in the capital city Sanaa and a fierce debate over whether he should be allowed to return to power. The president is reported to have reneged three times on promises to hand over leadership in a peaceful transition.
Adm. Michael Mullen, chairman of the U.S. Joint Chiefs of Staff, on Wednesday said recent events have heightened the risk of terrorist attacks by the al-Qaeda franchise.
"It is incredibly dangerous and made more dangerous in the ongoing chaos," Mullen said at a press conference in Cairo, Egypt. "The downside of a much more chaotic and much more violent Yemen is not just bad for Yemen, it's bad for the region, it's bad for the world."
That said, "we are continuing to receive cooperation" from the Yemeni government, Panetta told the Senate Armed Services Committee. The CIA director called the latest events in Yemen "a scary and an uncertain situation," but added that "with regards to counterterrorism, we're still very much continuing our operations."
Panetta said classified details of U.S. counterterrorism efforts in Yemen could be discussed in a closed-door committee session held later on Thursday.
Attacks targeting the United States by AQAP operatives since the group's emergence in early 2009 have included Nigerian-born Umar Farouk Abdulmutallab's attempt late that year to blow himself up on a commercial flight to Detroit, and a failed effort in October 2010 to mail explosives-rigged parcels on cargo planes bound for U.S. destinations (see GSN, Feb. 10).
At least one Yemeni native detained on suspicion of terrorist activity has said his cohorts were attempting to buy uranium and they might, in fact, have acquired some. Uranium could be used to in a nuclear weapon or, perhaps more likely, in a "dirty bomb" that spreads radioactive material in a conventional blast.
Al-Qaeda operatives have also shown interest in obtaining chemical and biological weapons. One high-profile detainee threatened that al-Qaeda would detonate a WMD device in the event that Osama bin Laden were captured or killed (see GSN, April 26). U.S. commandos killed the al-Qaeda leader in a raid last month in Abbottabad, Pakistan (see GSN, May 2).
The United States has repeatedly carried out counterterrorism attacks in Yemen using cruise missiles and drones, including an assault last month that targeted Anwar al-Awlaki, the U.S.-born cleric and a leader of al-Qaeda in the Arabian Peninsula. Al-Awlaki -- who is said to have inspired a number of violent strikes against Western targets including the November 2009 shootings at Fort Bragg, Texas -- reportedly survived without injury.
"AQAP is intensely focused on conducting a near-term attack against the United States, and poses an immediate terrorist threat to U.S. interests and the homeland," Panetta said in written responses to questions from the Senate committee. He said the group is "still actively plotting attacks."
The latest instability in Yemen has allowed the al-Qaeda offshoot to enlarge its area of operations, Panetta acknowledged.
"The ongoing unrest has weakened an already fragile economy and allowed AQAP to expand its influence and to make some tactical gains in the tribal areas -- in several cases seizing and holding territory now outside of Republic of Yemen government control," the CIA chief wrote. "However, despite AQAP's limited gains, they remain distant from, and largely counter to, the current anti-government movement in Yemen."
Given ongoing chaos in Yemen, the Defense Department is "constantly evaluating our security assistance and capacity building programs" there, particularly those in which U.S. troops help train and equip Sanaa's forces for counterterrorism and stability operations, Panetta said.
Washington last year provided Yemen with $155 million of this type of security assistance -- nearly half of all such U.S. aid offered internationally and the largest single country share, according to a Congressional Research Service report.
"The Republic of Yemen government currently remains a critical partner in the war against al-Qaeda, and DOD remains particularly mindful of the continued and growing threat to the homeland from AQAP," Panetta told the committee.
Yemen was among several nations -- including Pakistan and Somalia -- the Senate committee's chairman identified as being a particularly dangerous breeding ground for what could be the worst form of terror attack.
"The risk of a terrorist organization getting their hands on and detonating an improvised nuclear device or other weapon of mass destruction remains one of the gravest possible threats to the United States," said Senator Carl Levin (D-Mich.). He noted that the Defense Department was working with other U.S. agencies to "prevent the proliferation of nuclear weapons, fissile materials and dangerous technologies."
By Elaine M. Grossman
Global Security Newswire
WASHINGTON -- Political chaos and social unrest in Yemen have not hindered that nation's cooperation with the United States in countering terrorist activities, CIA Director Leon Panetta told a congressional panel on Thursday (see GSN, June 7).
(Jun. 10) - Yemeni soldiers aligned with antigovernment protesters chant slogans on Friday during a demonstration demanding the resignation of Yemeni President Ali Abdullah Saleh, who was injured in a recent attack. Instability in Yemen has not obstructed the Middle Eastern nation's cooperation with Washington on counterterrorism activities, CIA Director Leon Panetta said on Thursday (Ahmad Gharbali/Getty Images).
Testifying at a confirmation hearing to become the nation's next Defense secretary, Panetta appeared to suggest that Yemen's assistance has continued even after President Ali Abdullah Saleh was injured in a June 3 attack on his compound.
The blast killed seven people and wounded several senior officials. Saleh left the country a day later for medical treatment in Saudi Arabia. He was reportedly being treated for an injury to the head and burns over 40 percent of his body.
Yemen has "been destabilized and yet, we are continuing to work with those individuals in their government to try to go after AQAP," said Panetta, using an acronym for al-Qaeda in the Arabian Peninsula. The Yemen-based group is an affiliate of al-Qaeda that has repeatedly plotted attacks against the United States.
The explosion at a mosque inside the presidential palace came amid a 4-month-old uprising that has failed to dislodge the U.S. partner from his leadership post. It remains unclear who was responsible for the attack.
Saleh's departure after three decades of rule left a power vacuum in the capital city Sanaa and a fierce debate over whether he should be allowed to return to power. The president is reported to have reneged three times on promises to hand over leadership in a peaceful transition.
Adm. Michael Mullen, chairman of the U.S. Joint Chiefs of Staff, on Wednesday said recent events have heightened the risk of terrorist attacks by the al-Qaeda franchise.
"It is incredibly dangerous and made more dangerous in the ongoing chaos," Mullen said at a press conference in Cairo, Egypt. "The downside of a much more chaotic and much more violent Yemen is not just bad for Yemen, it's bad for the region, it's bad for the world."
That said, "we are continuing to receive cooperation" from the Yemeni government, Panetta told the Senate Armed Services Committee. The CIA director called the latest events in Yemen "a scary and an uncertain situation," but added that "with regards to counterterrorism, we're still very much continuing our operations."
Panetta said classified details of U.S. counterterrorism efforts in Yemen could be discussed in a closed-door committee session held later on Thursday.
Attacks targeting the United States by AQAP operatives since the group's emergence in early 2009 have included Nigerian-born Umar Farouk Abdulmutallab's attempt late that year to blow himself up on a commercial flight to Detroit, and a failed effort in October 2010 to mail explosives-rigged parcels on cargo planes bound for U.S. destinations (see GSN, Feb. 10).
At least one Yemeni native detained on suspicion of terrorist activity has said his cohorts were attempting to buy uranium and they might, in fact, have acquired some. Uranium could be used to in a nuclear weapon or, perhaps more likely, in a "dirty bomb" that spreads radioactive material in a conventional blast.
Al-Qaeda operatives have also shown interest in obtaining chemical and biological weapons. One high-profile detainee threatened that al-Qaeda would detonate a WMD device in the event that Osama bin Laden were captured or killed (see GSN, April 26). U.S. commandos killed the al-Qaeda leader in a raid last month in Abbottabad, Pakistan (see GSN, May 2).
The United States has repeatedly carried out counterterrorism attacks in Yemen using cruise missiles and drones, including an assault last month that targeted Anwar al-Awlaki, the U.S.-born cleric and a leader of al-Qaeda in the Arabian Peninsula. Al-Awlaki -- who is said to have inspired a number of violent strikes against Western targets including the November 2009 shootings at Fort Bragg, Texas -- reportedly survived without injury.
"AQAP is intensely focused on conducting a near-term attack against the United States, and poses an immediate terrorist threat to U.S. interests and the homeland," Panetta said in written responses to questions from the Senate committee. He said the group is "still actively plotting attacks."
The latest instability in Yemen has allowed the al-Qaeda offshoot to enlarge its area of operations, Panetta acknowledged.
"The ongoing unrest has weakened an already fragile economy and allowed AQAP to expand its influence and to make some tactical gains in the tribal areas -- in several cases seizing and holding territory now outside of Republic of Yemen government control," the CIA chief wrote. "However, despite AQAP's limited gains, they remain distant from, and largely counter to, the current anti-government movement in Yemen."
Given ongoing chaos in Yemen, the Defense Department is "constantly evaluating our security assistance and capacity building programs" there, particularly those in which U.S. troops help train and equip Sanaa's forces for counterterrorism and stability operations, Panetta said.
Washington last year provided Yemen with $155 million of this type of security assistance -- nearly half of all such U.S. aid offered internationally and the largest single country share, according to a Congressional Research Service report.
"The Republic of Yemen government currently remains a critical partner in the war against al-Qaeda, and DOD remains particularly mindful of the continued and growing threat to the homeland from AQAP," Panetta told the committee.
Yemen was among several nations -- including Pakistan and Somalia -- the Senate committee's chairman identified as being a particularly dangerous breeding ground for what could be the worst form of terror attack.
"The risk of a terrorist organization getting their hands on and detonating an improvised nuclear device or other weapon of mass destruction remains one of the gravest possible threats to the United States," said Senator Carl Levin (D-Mich.). He noted that the Defense Department was working with other U.S. agencies to "prevent the proliferation of nuclear weapons, fissile materials and dangerous technologies."
Russia Stands Against U.N. Action on Syria
Friday, June 10, 2011
Russia on Thursday hinted it might block any attempt to have the U.N. Security Council penalize Syria for failing to comply with an ongoing probe of a suspected bombed nuclear reactor, the New York Times reported (see GSN, June 9).
Russia, China and four other members of the International Atomic Energy Agency's 35-nation governing board voted against a resolution to involve the Security Council in the U.N. nuclear watchdog's dispute with Damascus. The motion -- advanced by the United States and its allies -- passed on Thursday with backing from 17 nations on the board.
Moscow and Beijing both hold permanent Security Council seats and veto authority over all decisions by the body. Brazil, India and India -- all nonpermanent council members -- have raised questions as well over possible action against Damascus.
Intelligence assessments from the United States reportedly indicate Syria's Dair Alzour facility had housed a reactor being built with North Korean aid and intended to produce weapon-usable plutonium. Damascus has rejected accusations it engaged in illicit nuclear activities, but it has denied multiple IAEA requests for return visits to Dair Alzour since inspectors found traces of anthropogenic natural uranium during a June 2008 inspection of the site.
The IAEA board resolution asserted that Syria's "noncompliance" with its global commitments was cause for referral to the Security Council for possible punitive action
Moscow, though, said the decision to send Syria to the United Nations was rooted in bias and conjectural data.
“The situation in this country, in our view, does not present a threat to international peace and security,” Russian Foreign Ministry spokesman Alexander Lukashevich said.
In arguing against the body's involvement in the Syrian dispute, Russia has contended that a Security Council resolution laid the groundwork for NATO's military involvement in Libya, according to envoys (see GSN, May 18; Dan Bilefsky, New York Times, June 9).
The IAEA board also pressed Syria to abide by the Additional Protocol to its atomic inspections arrangement, the U.N. nuclear watchdog said in a statement. The Additional Protocol enables IAEA inspectors to conduct snap inspections of atomic facilities and access additional information about nuclear activities in member states (International Atomic Energy Agency release, June 9).
The board's resolution on Syria "marks a significant action by the international community to uphold the nonproliferation rules of the road," the White House said in a statement.
"As the IAEA reports, with assistance from North Korea, Syria attempted to build a secret nuclear reactor capable of producing large amounts of nuclear weapons-usable plutonium, but with no apparent legitimate civilian purpose," according to the statement. "Syria has stonewalled and obstructed the efforts of the IAEA to investigate the nuclear reactor for years, refusing to provide access to associated sites, personnel and documents in violation of Syria’s freely accepted legal obligations.
"With this resolution, the board has referred Syria to the U.N. Security Council for further deliberation, consistent with the board’s mandate and authorities when confronted with noncompliance," the White House said.
"The United States remains determined to prevent the spread of nuclear weapons. We will work with partners and allies around the world to stand together to insist that every country meet its responsibilities or be held accountable for its actions," it added (White House release, June 9).
The State Department in a press release demanded that Damascus "fully cooperate with the IAEA by providing necessary access to all sites, items, and information related to the Dair Alzour investigation and allow the IAEA to verify that Syria is fully complying with its safeguards agreement.
"Syria is challenging the authority of the IAEA and the integrity of the Nuclear Nonproliferation Treaty regime. The only way Syria can demonstrate that it has come back into full compliance with the NPT is by cooperating with the IAEA and providing the necessary information and access" the document states (U.S. State Department release, June 9).
Russia on Thursday hinted it might block any attempt to have the U.N. Security Council penalize Syria for failing to comply with an ongoing probe of a suspected bombed nuclear reactor, the New York Times reported (see GSN, June 9).
Russia, China and four other members of the International Atomic Energy Agency's 35-nation governing board voted against a resolution to involve the Security Council in the U.N. nuclear watchdog's dispute with Damascus. The motion -- advanced by the United States and its allies -- passed on Thursday with backing from 17 nations on the board.
Moscow and Beijing both hold permanent Security Council seats and veto authority over all decisions by the body. Brazil, India and India -- all nonpermanent council members -- have raised questions as well over possible action against Damascus.
Intelligence assessments from the United States reportedly indicate Syria's Dair Alzour facility had housed a reactor being built with North Korean aid and intended to produce weapon-usable plutonium. Damascus has rejected accusations it engaged in illicit nuclear activities, but it has denied multiple IAEA requests for return visits to Dair Alzour since inspectors found traces of anthropogenic natural uranium during a June 2008 inspection of the site.
The IAEA board resolution asserted that Syria's "noncompliance" with its global commitments was cause for referral to the Security Council for possible punitive action
Moscow, though, said the decision to send Syria to the United Nations was rooted in bias and conjectural data.
“The situation in this country, in our view, does not present a threat to international peace and security,” Russian Foreign Ministry spokesman Alexander Lukashevich said.
In arguing against the body's involvement in the Syrian dispute, Russia has contended that a Security Council resolution laid the groundwork for NATO's military involvement in Libya, according to envoys (see GSN, May 18; Dan Bilefsky, New York Times, June 9).
The IAEA board also pressed Syria to abide by the Additional Protocol to its atomic inspections arrangement, the U.N. nuclear watchdog said in a statement. The Additional Protocol enables IAEA inspectors to conduct snap inspections of atomic facilities and access additional information about nuclear activities in member states (International Atomic Energy Agency release, June 9).
The board's resolution on Syria "marks a significant action by the international community to uphold the nonproliferation rules of the road," the White House said in a statement.
"As the IAEA reports, with assistance from North Korea, Syria attempted to build a secret nuclear reactor capable of producing large amounts of nuclear weapons-usable plutonium, but with no apparent legitimate civilian purpose," according to the statement. "Syria has stonewalled and obstructed the efforts of the IAEA to investigate the nuclear reactor for years, refusing to provide access to associated sites, personnel and documents in violation of Syria’s freely accepted legal obligations.
"With this resolution, the board has referred Syria to the U.N. Security Council for further deliberation, consistent with the board’s mandate and authorities when confronted with noncompliance," the White House said.
"The United States remains determined to prevent the spread of nuclear weapons. We will work with partners and allies around the world to stand together to insist that every country meet its responsibilities or be held accountable for its actions," it added (White House release, June 9).
The State Department in a press release demanded that Damascus "fully cooperate with the IAEA by providing necessary access to all sites, items, and information related to the Dair Alzour investigation and allow the IAEA to verify that Syria is fully complying with its safeguards agreement.
"Syria is challenging the authority of the IAEA and the integrity of the Nuclear Nonproliferation Treaty regime. The only way Syria can demonstrate that it has come back into full compliance with the NPT is by cooperating with the IAEA and providing the necessary information and access" the document states (U.S. State Department release, June 9).
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