[inaudible] there's a contrast. does he agree with me that we should be in the vanguard of reform in our own pension so we can look at at our constituents in the face of? >> know, i absolutely agree with you honorable lady in this house. we are public sector workers as well. we should be subject to exactly the same changes we are asking others to take on. so the increase in contribution should apply to the mp system even though it's a system where we already made him quite a lot. we are saying right across the board the increase in pension contributions is right too great a healthier long-term system. >> order. statement the foreign secretary. mr. secretary. >> here on c-span to really the british house of commons now as they move onto other legislative business. you been watching prime minister's question time and live wednesdays at 7 a.m. eastern what parliament is in session. >> at yesterday's hearing of the senate foreign relations committee, state department legal adviser harold koh said that the war powers act of 1973 does not apply to u.s. involvement in libya. and that president obama did not need congressional authority for military operations there. to senators on the committee, john kerry and john mccain, have sponsored a bill to authorize the leading nation for a year. this hearing is to ours. >> the hearing will come to order. thank you very much for being here this morning. i apologize for starting a few minutes late. we're here this morning to further examine an important since it has been passed. this isn't issue since the 1970s, and certainly it has been debated over the course of the last weeks. with respect to the war powers resolution and its role in america's use of force in libya. i want to thank all of my colleagues for the very constructive manner in which we have conducted that discussion over these past weeks, and this afternoon the committee will meet again, and i would ask all the members who are here as you run into other members, if we can begin that meeting punctually, i think there is a fair amount of business, it's obvious important business we want to try to consider it as expeditiously as possible. and that is was with respect to the proposed resolution regarding the limited operations in support of the nato mission in libya. it is my personal from believe 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, and i would reiterate that yesterday, two days ago when cindy mccain and i were in cairo meeting with general and how he and others, and they affirmed the conviction that the actions of the united nations with respect to the no-fly zone indeed saved many thousands of people from being massacred by gadhafi. there's no question in my mind about that. we also sent a message about something that matters to the american people, as a matter of our values. and that is about whether or not leaders should be permitted willy-nilly to turn their armies it on their own citizens, the citizens they're supposed to serve and protect. i have made clear my believe that the 60 day restriction contained in the war powers resolution does not apply in this situation, particularly sand cleaner the operations over to nato. but some people obviously can draw different interpretations, and will and will have a good discussion about that today. it's important in my judgment to remember that the war powers resolution was a direct reaction to particular account kind of war, particular set of events, the vietnam war, which at that time was the longest conflict in history in which we sold without any declaration of war and the loss of over 50,000 american lives, spanning three administrations. and during those three administrations, congress never declared war. or i might add authorize. they funded but there was no formal authorization. now understandably congress after that wanted to ensure that any future it would have an opportunity to assert its constitutional prerogatives, which i do agree with and do believe in. when america sends its soldiers abroad. but our involvement in libya is obviously clearly different from our fight in vietnam. it is a very limited operation and the war powers resolution applies to the use of armed forces in, and here i quote hostilities or situation where imminent hostilities is clearly indicated by the circumstancesi, referring to american armed forces. but for 40 years presidents havs taken the view that this language does not include every single military operation.ary presidents from both parties uve undertaken military operations without express authorizati won from congress. i will emphasize particularly for my friends that doesn't makd it right. and i'm not suggesting that it does.does. it still begs the announces each time of whether or not it fits t particular situation. certainly, panama, grenada, haiti, bosnia, plus a vote, lebanon -- the list is long where presidents have deemed it necessary to take a particular action. in some cases, those actions in design less than 60 days. in a number of them and in some of the most recent and prominent ones, they went well beyond 60 days. in fact, on one occasion, i believe lebanon, congress actually authorized action a year later. we have never amended the war powers resolution, and we have never amended the resolution in terms of this particular authorization that came through the united nations. the ford administration, for example, defined hostilities only as those situations where u.s. troops were exchanging fire with hostile forces. and subsequent administrations, republican and democrat alike, built on that interpretation. but are in libya today, no american is being shot at. no american troops are on the ground, and we're not going to put them there. it is true, of course, that the war powers resolution was not drafted with the drones in mind. as our military technology becomes more and more advanced, it may well be that the language that i just read needs further clarification. maybe it is up to us now to predefined id in the context of this more modern and changed warfare and threat. i recognize that there can be very reasonable differences of opinion on it this as it applies to libya today. so i am glad we're having this hearing. i think it is important. many of us have met with members of the libyan opposition. i know senators are eager to get to know them better and to learn about their plans and goals. i see that we're joined this morning by libya's ambassador to the united states, but he resigned during the uprising and is now the diplomatic representative of the transitional national council, which only recently angela merkel moved to actually recognize. like the ambassador, 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 and look to the bigger picture. a senate resolution authorizing the limited use of force in libya well, i think, show the world, particularly muammar gaddafi, at a time when most people make a judgment that the vice is squeezing, the opposition is advancing, the regime is under enormous pressure, that congress and the president are committed to this critical endeavor. the united states is always strong best when we speak with one strong voice on foreign policy. that is why i hope this afternoon we could find our way to an agreement on a bipartisan resolution. endorsing our supporting role in this conflict also sends a message to our allies and nato. secretary gates, prior to departing, made a very strong speech about nato. the need for nato to do more. the fact is, nato is doing more in this effort. and they are in the lead in this effort. we have asked, in the past, for the alliance to date -- to take the lead in the conflict. too often they have declined. in this case, they have stepped up. i believe that for us to turn on our own words and hopes and urg ings of the last years and pull the rug out from under them would have far-reaching consequences. with that said, i am gridley -- it is a great pleasure for me to welcome here harold koh, the state department's legal adviser. he is a distinguished scholar of constitutional law and international law. he has a long career of service in the government, as well as in academia we also have -- as well as in academia. we have some others that we asked to be here this morning, but they declined. on the second panel, we have two witnesses. mr. fisher, a scholar in residence of the constitution project. he worked at the library of congress as the senior specialist in the separation of powers, and he was a specialist in constitutional law. and the professor and there is from temple university, and he served in the state department and on the national security council staff. he has written extensively on foreign relations law at the united states. so we appreciate all of our witnesses taking time to be here today. senator lugar. >> thank you very much for calling this meeting. we're considering the legal and constitutional basis for ongoing united states military operations in libya. the president declined to seek congressional authorization before initiating hostilities. subsequently, he has carried them out for more than three months without seeking or receiving a congressional authorization. this state of affairs is at odds with the constitution. it is at odds with the president's own pronouncements on the war powers during his presidential candidacy. for example, in december 2007, he responded to a question by saying, "the president does not have power under the constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." before our discussion turns to constitutional and legal issues, i believe it is important to make a more fundamental point. even if one believes the president some how had the legal authority to initiate and continue u.s. military operations in libya, it does not mean that going to war without congress was either wise or helpful to the operation. the vast majority of members of congress, constitutional scholars, and military authorities would endorse the view that presidents should seek congressional authorization for war when circumstances allow. there is a near uniformity of opinion that the chances of success in a war are enhanced by the unity, clarity of mission, and constitutional certainty that such an authorization and debate provide. there was no good reason why president obama should have failed to seek congressional authorization to go to war in libya. a few excuses have an offer, ranging from an impending congressional recess to the authority provided by a u.n. security council resolution. these excuses are not justified. 12 days before the united states launched hostilities, i called for the president to seek a declaration of war before taking military action. the arab league resolution, which is cited as a key event in calculations on the war, was passed a full week before we started launching missiles. there was time to seek congressional approval, and congress would have debated a war resolution if the president had presented one. this debate would not have been easy, but presidents should not be able to avoid constitutional responsibilities merely because engaging the people's representatives is inconvenient. if the outcome is in doubt, it is all the more reason why a president should seek the debate. if he does not, he is taking the extraordinary position that his plans for war are too important to be upset by a disapproving vote in congress. the founders believed that presidents alone shall not be trusted with war-making authority. and they constructed checks against executive unilateralism. james madison, in 1797, wrote a letter to thomas jefferson and said "the constitution supposes, like the history of all governments demonstrate, that the executive is the branch of power most interested in war and most prone to it. it is, accordingly, with studied care vested the question of war in the legislature." there are circumstances under which the president might be justified in deploying military force without congressional authorization. as senator webeb has pointed ou, none of the reasons apply to the libyan case. our country was not attacked or threatened with an attack. we were not obligated under a treaty to defend the libyan people. we were not rescuing americans or launching a one-time punitive retaliation. nor do the operations require surprise that would have made a public debate impractical. in this case, president obama made a deliberate decision not to seek a congressional authorization of his action, either before it commenced or during the last three months. this was a fundamental failure of leadership that placed expedience above constitutional responsibility. some will say that president obama is not the first president to employ american forces overseas in a controversial circumstances without a congressional authorization. to say that presidents have exceeded their constitutional authority before is no comfort. moreover, a highly dubious comments from the obama administration for not needing congressional approval break new ground in justifying a unilateral presidential decision to use force. the approval of even more war- making authority in the hands of the executive is not in our country's best interest, especially at a time when our nation is deeply in debt and our military is heavily committed overseas. at the outset of this conflict, the president asserted that u.s. military operations in libya would be "ltd. in their nature, duration, and scope -- limited in their nature, duration, and." of the concerted that they did not require adult dog -- a declaration of war. three months later, these assurances ring hollow. activities have expanded to an all but declared campaign to drive gaddafi from power. the administration is unable to specify any applicable limits to the duration of the operations. and the scope has grown from efforts to protect civilians under imminent threat to obliterating libya's oppose the military arsenal, command and control structure, and leadership apparatus. most recently, the administration looked to avoid these obligations under the war powers resolution by making the incredible assertion that u.s. operations in libya do not constitute hostilities. even some prominent supporters of the war have refused to accept this claim. the administration's own description of the operations in libya underscore the fallacy of this position the u.s. warplanes have reportedly struck libya air defenses some 60 times since nato assumed the lead role in the libya campaign. predator drones have reportedly fired missiles on some 30 occasions. most significantly, the broader range of air strikes being carried out by other nato forces depend on the essential support functions provided by the united states. the war powers resolution required the president to terminate the introduction of u.s. forces into hostilities in libya on may 20, 60 days after he notify congress of the commencement of the operation. the administration declined to offer any explanation of its view that u.s. forces were not engaged in hostilities in libya until nearly a month later, on june 15. even at that time, the administration's explanation was limited to four sentences. and it was a 32-page report on the libyan operations. the administration analysis focuses on the question of whether u.s. casualties are likely to occur. thereby minimizing other considerations relevant to the use of force. but this definition of hostilities that have a significant scope to conduct warfare from remote means, such as missiles and drones. it would deny congress a say in other questions of located in decisions to go to war, including the impact on u.s. strategic interests on our relations with other countries, and on our abilities to meet competing national security priorities. the administration's report also implied that because allied nations are flying most of the missions over libya, the united states operations are not significant enough to require congressional authorization. this characterization underplays the centrality of u.s. contributions to the nato operations in libya. we are contributing 70% of the coalition's intelligence capabilities and a majority of its refueling assets. the fact that we're leaving most of the shooting to other countries does not mean the united states is not involved in acts of war. if the u.s. encountered persons performing similiar activities in support of al qaeda or taliban operations, we certainly would deem them to be participating in hostilities against us. moreover, the language of the war powers resolution clearly encompasses the kinds of operations u.s. military forces are performing in support of other nato countries. these concerns are compounded by indications of the administration's legal decision being a result of the decision process. in press reports, the president made this decision without the department of justice having the opportunity to develop a unified legal opinion. the administration has refused our request to make witnesses from the department of defense and justice available for today's hearing, and that is regrettable. finally, one would expect the administration to be fully forthcoming on consultations about libya to compensate, in some measure, for the lack of congressional authorization for the war. although consultations are no substitute for formal authorization. they serve a vital purpose and unify a being -- unifying the government and providing congress with a basis for decision making on the war. for the most part, for example, in the clinton administration and president clinton himself consulted with congress during the u.s. intervention in the balkans. in sharp contrast, the obama administration's efforts to control the congress have been perfunctory, and complete, and dismissive of reasonable requests. this committee alone has experienced at least three occasions when briefings or canceled or relevant witnesses were denied without explanation. it was pointed out that very basic questions about the operation have gone unanswered. the deputy secretary of state declined to address certain questions on the basis they could only be answered by the military, and yet the administration has refused to provide the committee with defense department witnesses. it is inexplicable behavior that contributes to the damage that the libyan president might create in the future. i do not doubt that president obama elected to launch this war because of the altruistic impulse is, but that does not make the united states intervention in libya any less of a war of election. american pilots are flying in minority of the missions within the coalition, which justifies the contingent we're not engaged in hostilities, especially since u.s. participation enables most of the operations under way. the president does not have the authority to substitute his judgment for constitutional process when there is no emergency that threatens the united states and our vital interests. the world is full of examples of local and reasonable violence to which the united states military could be applied for some altruistic purpose. under the constitution, the congress is vested with the authority to determine which, if any, of the circumstances justify the consequences of american military intervention. i thank the chairman for the opportunity to make this statement. >> so there you have it, sir. the stage is set. two differing views, reflecting over 50 years of service on this committee. and we're still not sure what the answer is. so your task