I note that, as I have said here before, Harold Koh is IMHO an enemy of American sovereignty and is well positioned at the State Dept to do major damage-- but that is not the point here-- here he stands for an imperial presidency:
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WASHINGTON — A resolution authorizing American intervention in Libya was approved on Tuesday by the Senate Foreign Relations Committee, hours after members skeptically grilled the administration’s legal adviser over his assertion that airstrikes and other military measures did not amount to hostilities.
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Philip Scott Andrews/The New York Times
Harold H. Koh, a legal adviser to the State Department, testified on Tuesday.
Libyan Base Falls to a Rebel Ambush in the West (June 29, 2011)
The resolution, approved 14 to 5, would allow President Obama to continue for one year the involvement of United States military forces in the NATO-led operation in Libya; it now heads to the full Senate. A similar measure failed in the House last week, underscoring that even in a divided government, the Senate remains a more interventionist body while the House is increasingly dubious about foreign ventures and their cost.
For weeks, tensions have escalated between members of Congress and the Obama administration over the president’s decision not to seek Congressional authorization for the mission in Libya. The Vietnam-era War Powers Resolution stipulates that presidents must terminate unauthorized deployments into what the law calls hostilities 60 days after notifying Congress that they have begun.
In testimony before the committee Tuesday, Harold H. Koh, the legal adviser to the State Department, insisted that the resolution did not apply to Libya, a position that the administration has expressed repeatedly.
“From the outset, we noted that the situation in Libya does not constitute a war,” Mr. Koh said. He cited four factors — ground troops and significant non-air forces have not been involved, the lack of American casualties or a significant threat of them, a limited risk of escalation, and the limited use of military means — as the central points of logic in the administration’s decision to essentially ignore Congress beyond providing largely perfunctory information.
That logic was rejected by many members of the committee.
Senator Jim Webb of Virginia, a Democrat, said, “When you have an operation that goes on for months, costs billions of dollars, where the United States is providing two-thirds of the troops, even under the NATO fig leaf, where they’re dropping bombs that are killing people, where you’re paying your troops offshore combat pay and there are areas of prospective escalation — something I’ve been trying to get a clear answer from with this administration for several weeks now, and that is the possibility of a ground presence in some form or another, once the Qaddafi regime expires — I would say that’s hostilities.”
A Republican senator, Bob Corker of Tennessee, went further, accusing the administration of “sticking a stick in the eye of Congress” and saying it had done “a great disservice to our country.”
Mr. Koh did concede that the administration could have handled the situation differently. “If we had to roll the tape back, I’m sure there are many places where some would have urged — and I would have been among them — coming up with, coming up earlier for more briefings and to lay out these legal positions,” he said. Officials from the Department of Defense and Department of Justice declined to provide witnesses for the hearing.
The resolution that the committee voted on was sponsored by Senator John Kerry, the Massachusetts Democrat who is chairman of the committee, and Senator John McCain, Republican of Arizona. In arguing for its passage, Mr. Kerry pressed his colleagues to look beyond the issue of how the White House had conferred with Congress and to support the mission, which he said was largely aimed at saving Libyan civilians from massacre. “The rationale for being there is compelling,” he said.
Several amendments attached to the resolution were also adopted, including one offered by Senator Richard G. Lugar of Indiana, the ranking Republican on the committee, which explicitly prohibits the use of ground forces in Libya.
Other approved amendments included provisions stating that any war reconstruction costs in Libya should be borne by that government and the Arab League nations, which requested American assistance in the region, and another that would reopen an inquiry into the Pan Am 103 bombing over Lockerbie, Scotland, in 1988. The Libyan government took responsibility for the bombing in 2003 as part of a broader settlement in which Col. Muammar el-Qaddafi agreed to give up his nuclear and chemical weapons programs.
Another amendment offered by Mr. Lugar, which failed, would have further restricted the United States’ role in Libya, essentially ending airstrikes and the use of drones.
In the end, he voted against the entire resolution, as did Senators Jim DeMint of South Carolina, Mike Lee of Utah, James Risch of Idaho and Mr. Corker.
Mr. DeMint said in an interview after the vote that he based his decision on the cost of the American operations in Libya, which are expected to reach $1 billion this fiscal year, and the lack of the administration’s earlier involvement with Congress.
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Summary
As the intervention in Libya continues, the International Criminal Court has issued an arrest warrant for Libyan leader Moammar Gadhafi. This may embolden NATO to continue using airstrikes in an attempt to assassinate Gadhafi quickly, especially as domestic considerations could cause coalition partners to begin to lose their will to carry out the mission. Should this short-term push fail, however, the inevitable track will be one that leads to a negotiated settlement, first dealing with Gadhafi’s inner circle and, failing that, eventually with the Libyan leader himself.
Analysis
As the Libyan intervention exceeds 100 days, there is still no end in sight. A military stalemate persists in the east, while rebels from Misurata are struggling to push much farther west than Zlitan, and Nafusa Mountain guerrillas face a difficult task in advancing toward the coast. Moreover, the International Criminal Court (ICC) issued an arrest warrant for Libyan leader Moammar Gadhafi on June 27, rendering his prospects for exile all the more unlikely.
The warrant, however, provides added impetus to NATO’s current strategy of using airpower to try to assassinate the Libyan leader as a means of accomplishing the mission: regime change. The three countries currently leading the Libyan intervention — the United States, the United Kingdom and France — are also increasing their efforts to induce people close to Gadhafi to betray him. But the longer the operation continues, the higher the chance that the West will begin to grow weary of another drawn-out war, at which point NATO will find it increasingly difficult to effect regime change. At some point, reaching a negotiated settlement will become the best of a number of unattractive options. Negotiations have already begun in an unofficial capacity, but the fact that no country involved wants to deal with a side that includes the Libyan leader will only prolong the process.
The Coalition: Weary of War?
NATO jets continue to bomb targets across Libya. In doing so, however, the coalition has run into the inevitable problem of civilian casualties. This has yet to make any demonstrable impact on public opinion of the war in countries leading the campaign, which remains consistently in favor of regime change in Libya, though against an escalation that includes the use of ground troops. For example, a poll published June 20 regarding Western countries’ opinion of regime change in Libya showed a consistently high level of approval. The longer the conflict continues, however, the higher the chance for public opinion to turn against the war.
Notably, the country whose public is most opposed is Italy, which also happens to be the first NATO country on the verge of withdrawing from the operation. Italian Foreign Minister Franco Frattini first intimated this June 22. In response to multiple reports of civilian casualties due to NATO airstrikes, he called for an immediate halt to the campaign so that humanitarian aid could be deployed. Prime Minister Silvio Berlusconi reaffirmed the shift in the Italian position away from the airstrikes June 24, when he told an EU summit that Italy was “pushing for political mediation which will deliver a final solution.”
Rome’s true motivation has more to do with domestic political pressures placed upon the Berlusconi government by its main coalition partner, Lega Nord, over the cost of the intervention rather than the fear of civilian casualties. But the reason for Italy’s objections is less important than their potential consequence: The coalition of NATO countries that have signed up to participate in Operation Unified Protector is in danger of fracturing, albeit slowly, and the Italian exit could represent the first crack.
The United Kingdom’s discourse on Libya is emblematic of a deep-rooted debate over the proper level of funding its military should receive. Recent budget cuts to the armed forces have exacerbated the United Kingdom’s inability to spread its forces across multiple theaters, and the military is using the conflict in Libya — and more specifically, the argument that its forces are overstretched — as a political tool to justify its public criticism of the budget cuts. Several leading military officials have made public statements to this effect over the past three weeks, and Prime Minister David Cameron has been quick to quash any rumors that these statements reveal a faltering will to continue the mission. However, Defense Secretary Liam Fox on June 27 admitted that the United Kingdom may have to re-prioritize some of its armed forces to see the Libyan operation through. This indicates that the complaints from the military have substance.
In the United States, Congress rather than the military is showing its resistance to the operation in Libya. The U.S. House of Representatives made its stance known June 24 by voting down a bill that would have given U.S President Barack Obama authority to wage war in the North African country. Despite the fact that the House — paradoxically, perhaps — voted down a separate proposal on the same day to restrict funding for the operation, the fact that there is widespread opposition to the Libya intervention within both the Republican and Democratic parties sent a clear message: The indefinite deployment of U.S. troops will cost Obama political capital at home.
Another factor the White House may be contemplating concerns the June 23 U.S. announcement regarding the release of oil from the Strategic Petroleum Reserve and other International Energy Agency countries, which both cited the loss of oil output from Libya as the primary factor in their decision to pre-empt an anticipated price increase in the summer. Washington, as well as the other countries involved, thus has an interest in ending the conflict soon, but only in a way that would allow oil production to resume as soon as possible. (An anonymous British diplomat leaked to the media June 24 details of a British Foreign Office assessment that claimed that eastern Libyan oil infrastructure had not been that badly damaged and that it would take three to four weeks for oil exports to resume after Gadhafi’s fall. It is unclear whether this is true or whether it is simply intended to serve as an incentive for countries to keep pushing through until the end.)
France has the least domestic opposition toward regime change in Libya, and it is one of the leaders of the air campaign as well. France was the first country to recognize the Benghazi-based National Transitional Council, and Paris would likely be the last country to abandon the mission that has become, among other things, a point of personal pride for President Nicolas Sarkozy. Sarkozy wants to avoid being perceived as weak ahead of the 2012 presidential election, especially as the race is beginning to heat up. One of the main Socialist presidential nominee candidates, Martine Aubry, is set to announce her candidacy June 28, and the Socialists may decide to put the Libya intervention — and the way it is being conducted — at the forefront of their anti-Sarkozy campaign.
A Failing Trust in the Rebels
The once-touted option of arming the rebel opposition to fight the Libyan army on the ground has lost traction in NATO. The monthslong stalemate in the east shows no signs of changing, while Misurata remains an island of rebellion in the western coastal region — though some of the rebel fighters from the city have been trying to push westward toward Tripoli despite currently being blocked outside of the city of Zlitan. Nafusa Mountain guerrillas, meanwhile, are making slight progress in terms of advancing northward, with some fighters having descended from the mountains to battle Libyan forces, but their chances of ever taking the capital are slim.
The real problem continues to lie in the uncertainty that surrounds the rebel council, which is officially recognized by a handful of countries as the legitimate representative of the Libyan people — it is recognized by even more countries in the West and by Russia and China as the de facto government of eastern Libya. All of the countries that have begun to develop ties with the council realize they will need to maintain good relations with Benghazi if they want to conduct business in Libya in the future, namely in the oil sector. Yet the West has been hesitant to fully arm the rebels or deliver on the hundreds of millions of dollars of aid that has been promised them in various international conferences since April. This suggests a general lack of trust for the council that prevents full-scale Western support, a distrust perhaps stemming from prior connections many of its leaders held with the Gadhafi regime, the potential existence of jihadist elements within the council, or the disbelief that any one faction truly speaks for all of Libya’s rebels.
NATO thus has few good options. The most attractive option, from NATO’s perspective, is to fulfill the mission as quickly as possible, while there is still resolve in the West. This means it will either convince regime insiders to push Gadhafi out, or increase its attempts to assassinate Gadhafi from the air, dealing with the resulting power vacuum later. Whether this strategy will work is unknown. But the longer it takes, the higher the chance that a coterie of NATO countries will eventually be forced to fully support a negotiated settlement to end the conflict.
The council is opposed to any outcome that does not include Gadhafi’s ouster. For months, it was even opposed to any solution that did not involve Gadhafi’s being forced to leave the country. But as cracks within the NATO countries participating in the bombing began to emerge, the rebels’ negotiating position began to weaken because their leverage with countries such as Qatar does not provide them much help in a military conflict with Gadhafi. This has led to a slight easing of the council’s position. During a June 24 interview in French media, a rebel spokesman said the council would be satisfied with Gadhafi’s retiring to a “Libyan oasis under international control,” provided he and his family are barred from participating in any future government. The spokesman also said the council would be willing to discuss the formation of an interim government with “any technocrat or Libyan official who does not have any blood on their hands.”
The Beginning of Negotiations
It is under these circumstances that official negotiations will likely begin. Such a path will not immediately lead to talks between the rebels and Gadhafi himself, however. The first attempt will be to separate Gadhafi’s inner circle from the regime, offering those without “blood on their hands” a share of power in the new Libya in exchange for betraying their leader. (Deciding who does and does not fall in this category will most likely be subject to negotiation, not based upon a true examination of the personal records of various regime officials.) Best positioned to lead any future negotiations will be the Russians (via the African Union), who have deep-rooted relations with both the West and Gadhafi and who have balanced their support of Tripoli and Benghazi to ensure a future presence throughout Libya.
The rebel spokesman who broached the topic of negotiations said negotiations have, in fact, already begun through intermediaries in countries such as France and South Africa. No country, however, wants to negotiate with Gadhafi himself unless all other options have been exhausted. If NATO jets are unable to kill the Libyan leader, then the alliance will attempt to undermine him from within.
The problem with this approach is embodied in the ICC warrants. Though Gadhafi, his son Seif al-Islam and his long-time intelligence chief Abdullah al-Sannousi have been the only specific targets of this round of ICC warrants, no one connected to the regime will enjoy a guarantee of continued immunity from prosecution. This makes it difficult, though not impossible, to incentivize a deal for them, especially when the rebel military threat is low, and the NATO countries participating in the operations in Libya — which are hesitant to deploy ground troops — have yet to show that their attempts at assassinating Gadhafi will prove successful.
Read more: NATO's Diminishing Options in Libya | STRATFOR