June 28, 2011

Chairman Kerry Opening Statement At Hearing On Libya and War Powers

Washington, DC – This morning, Senate Foreign Relations Committee Chairman John Kerry (D-MA) held a hearing with the State Department’s legal adviser and outside experts to examine Libya and the War Powers Resolution. This afternoon, the Senate Foreign Relations Committee will consider a bipartisan resolution authorizing the limited use of the United States Armed Forces in support of the NATO mission in Libya.

The full text of Chairman Kerry’s statement, as prepared, is below:

We’re here this morning to further examine an important issue that we have been debating for many weeks now: the War Powers Resolution and its role in America’s use of force against Libya. I would like to thank all my colleagues for the constructive manner in which we have conducted that discussion. And this afternoon, the Committee will meet again to consider—and I hope, approve—a bipartisan resolution authorizing the President to continue limited operations in support of the NATO mission in Libya.

It is my firm personal belief that America’s values and interests compelled us to join other nations in establishing the no-fly zone over Libya. By keeping Qadhafi’s most potent weapons out of the fight, I am positively convinced that we saved thousands of civilians from being massacred.

And we sent a message that leaders should never turn their armies on the citizens they are supposed to serve.

I have made clear my belief that the 60-day restriction contained in the War Powers Resolution does not apply in this situation—particularly since we handed operations over to NATO.

It is important to remember that the War Powers Resolution was a direct reaction to the Vietnam War, which was at that time the longest conflict in our history. Over 58,000 Americans lost their lives in fighting that spanned three administrations, and yet Congress never declared war. Understandably, Congress wanted to ensure that, in the future, it would have an opportunity to assert its prerogatives – which I believe in - when America sent its soldiers abroad.

But our involvement in Libya is completely different from our fight in Vietnam. It is a limited operation.

The War Powers Resolution applies to the use of armed forces in—and here I’m quoting—“hostilities” or “situations where imminent involvement in hostilities is clearly indicated by the circumstances.”

But for 40 years, Presidents have taken the view that this language doesn’t include every single military operation. Presidents from both parties have undertaken military operations without express authorization from Congress. In Bosnia, Kosovo, Panama, Somalia, and Lebanon, the administration did not seek authorization under the War Powers Resolution. Some of these engagements have ended in 60 days, some have not. In the case of Lebanon, authorization under the War Powers Resolution was not granted for over a year after hostilities began. That does not make it right, but we have never amended the resolution in an effort to prevent such operations.

The Ford Administration, for example, defined hostilities only as those situations where U.S. troops were exchanging fire with hostile forces. And subsequent administrations built on that interpretation. But, in Libya today, no American is being shot at. There are no American troops on the ground, and we’re not going to put them in that position.

It’s true, of course, that the War Powers Resolution was not drafted with drones in mind. As our military technology becomes more and more advanced, maybe the language that I just read needs further clarification. I certainly recognize that there can be reasonable differences of opinion on this point as it applies to Libya today. So I am glad that we are having this hearing, I think it is important.

Many of us have met with members of the opposition, and I know senators are eager to get to know them better and to learn about their plans and goals. I see that this morning we are joined by Ali Aujali. He was Libya’s ambassador to the United States, but he resigned during the uprising and is now the diplomatic representative of the Transitional National Council.

Like Ambassador Aujali, we would all like to see a brighter future for Libya. That is why when it comes to America’s involvement, we need to look beyond the definition of “hostilities” to the bigger picture. A Senate resolution authorizing the limited use of force in Libya will show the world - in particular Muammar Qadhafi at a time when pressure on his regime is increasing - that Congress and the President are committed to this critical endeavor. The United States is strongest when we speak with one voice on foreign policy, and that is why I hope that this afternoon, we can agree on a bipartisan resolution.

Recently, Secretary Gates made an important speech about the need for NATO to do more. We have asked in the past for the alliance to take the lead in many conflicts. Too often they have declined. In this case, NATO has stepped up. Endorsing our supporting role in this conflict will send a message to our allies in NATO. We cannot pull the rug out from under the alliance by withdrawing support for the limited U.S. role, it would have far reaching consequences.

With that, I’d like to welcome Harold Koh, the State Department’s legal adviser. He is a distinguished scholar of constitutional law and international law, and has a long career of service in government as well as academia. We had also invited witnesses from the Pentagon and the Department of Justice to testify this morning, but they declined to appear.

On the second panel we have two witnesses.

Louis Fisher is Scholar in Residence at the Constitution Project, and he previously worked for four decades at the Library of Congress as the senior specialist in Separation of Powers and as a specialist in Constitutional Law.

And Professor Spiro is the Charles R. Weiner Professor of Law at Temple University. He has served in the State Department and on the National Security Council staff, and has written extensively on the foreign relations law of the United States.

I appreciate all of you taking time to testify today.


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