from their oil. so that did help us in fighting that war. host: we have the deputy director of the energy and national security program. thanks for joining us. guest: thank you. host: that's all. we will be back to 7:00 tomorrow morning eastern time. now to the house lorca. -- the house ". we will also check in with the senate's foreign relations committee on c-span 2 day. call[captions copyright national cable satellite corp. 2011] [captioning performed by national captioning institute]

[captioning made possible by the national captioning institute, inc., in cooperation with the united states house of representatives. any use of the closed-captioned coverage of the house proceedings for political or commercial purposes is expressly prohibited by the u.s. house of representatives.]

the speaker pro tempore: the house will be in order. the chair lays before the house a communication from the speaker. the clerk: the speaker's rooms, washington, d.c., june 28, 2011, i hereby appoint the honorable andy harris to act as speaker pro tempore on this day. signed, john a. boehner, speaker of the house of representatives. the speaker pro tempore: the prayer will be offered by our

chaplain, father conroy. chaplain conroy: let us pray. eternal god, we give you thanks for giving us another day. as we -- we ask today that you bless the members of the people's house as they visit their home districts. may they listen and interact constructively and safely. with those whom they represent. bless also their families and the time they have together at home so that when they return they are rested and energized to take on the important work that faces them concerning our economy and national security in today's world. bless their constituents as well. help them to understand fully the issues facing their representatives and with generous hearts empower the members of this house to consider not only the interests of the local district but those of the nation and the world which looks to our great

democracy as a beacon of hope. may we as a nation be worthy of the hope placed us in. may all that is done this day be for your greater honor and glory, amen. the speaker pro tempore: the chair has examined the journal of the last day's proceedings and announces to the house his atrolve thereof. pursuant to clause 1 of rule 1, the journal stands approved. the chair will lead the house in the pledge of allegiance. i pledge allegiance to the flag of the united states of america and to the republic for which it stands, one nation, under god, indivisible, with liberty and justice for all. the chair will receive a message. mike: mr. speaker, a message from the senate. the secretary: mr. speaker. the speaker pro tempore: ms. secretary. the secretary: i have been directed by the senate to inform the house that the senate has

passed without amendment h.r. 2279, cited as the airport and airway extension act of 2011 batch 3. the speaker pro tempore: without objection, the house stands adjourned until 10:00 a.m. on that is what this hearing is all about. harold koh will be testifying today. live coverage on c-span. >> and the war powers resolution

applies to the use of armed forces in "hostilities or situations where imminent hostilities, involving hostilities, is clearly indicated by the circumstances, referring to american armed forces." but for 40 years, presidents have taken the view that this language does not include every single military operation. presidents from both parties have undertaken military operations without express authorization from congress. i will emphasize that that does not make it right. i am not suggesting that it does. it still begs the analysis each time of whether or not it fits a 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 this morning is an interesting one, and i think we will not only have a good dialogue, but maybe it will be fun. have added. you are on. >> thank you, mr. chairman, senator lugar, and members of the committee for this important hearing. it is good to be back before you. like past the legal advisers, i am honored to appear to explain the administration's legal position on the war powers. i have submitted detailed testimony, which you have before you, which reviews the brutality visited by gaddafi on the people of libya and the urgent, but restrained, steps this administration has taken to stop it as part of a supporting role within the nato-led security council-authorized civilian protection mission that is limited with respect to design, exposure of u.s. troops, risk of escalation, and choice

of military means. today, let me make three points. first, this administration is acting lawfully, consistent with both the letter and spirit of the constitution and the war powers resolution. contrary to what some have climbed, we're not asserting sweeping constitutional power to bypass congress. the president has never claimed the authority to take the nation to war without congressional authorization. he has never claimed authority to violate the war powers resolution or any other statute. he has not claimed the right to violate international law, to use force abroad when doing so would not serve important national interest, or to refuse to consult with congress on important war powers issues. we recognize that congress has powers to regulate and terminate uses of force and that the war powers resolution it plays an important role in promoting dialogue. my testimony continues that dialogue, which now includes more than 10 hearings, 30

briefings, and dozens of exchanges with congress on these issues. from the start, we have saw to obey the law a bill would not serve an administration that did not. the president reported to congress consistent with the war powers resolution within 48 hours of commencing operations in libya. he friend our military mission in narrowly, directing, among other things, that no ground troops would lead -- would be deployed. on iger 4, u.s. forces would transition responsibility to nato command, -- on april 4, u.s. forces with transition responsibilities to nato command. this does not constitute a bore, requiring specific congressional approval under the declaration of war clause of the constitution. as my testimony notes on page

13, the president has constitutional authority -- [no audio] please stand by >> as everyone recognizes, the legal trigger for the automatic pullout plot, hostilities is an ambiguous term that is defined know where in the statute could of the legislative history makes clear there was no agreed upon -- hooke >> various leaders have indicated they do not believe u.s. military operations in

libya and not the kind of hostilities' envisioned by the 60-day pullout provision. we believe that you is correct and confirmed by historical practice. the historical practice, which i summarize and my testimony, suggests that when u.s. forces engage in limited military mission that involves limited exposure for u.s. troops few and limited risk of serious escalation and employs a limited military means, we're not in hostilities of the kind of vision by the war to trigger an automatic 60-day pullout. let me say a word about each of these limitations. first, the nature of the mission is unusually limited. but presidential design, u.s. forces are playing a constraint and supporting role in the nato- led multinational civilian protection mission charged with enforcing the security council resolution. this circumstance is virtually unique, not found in any of the

recent historic situations in which the hostility questions has been debated from the iranian hostages crisis to also the door and others. second, the exposure of our armed forces is limited. from the transition date of march 31 forward, there have been no u.s. casualties, no threat of significant casualties, no active exchanges of fire with hostile sort -- hostile forces, no significant armed confrontation or sustain confrontation of any kind with hostile forces.

measured casualties, sustained act of combat, or expanding geographic scope. in this respect, libya contrasts with other recent cases. lebanon, central america, somalia, the persian gulf tanker controversy, discussed on page 10 of my testimony -- even the u.s. armed forces were repeatedly engaged by other forces and sustain significant casualties. finally, senators, we're using limited military means, not the kind of full military engagements with which the war powers resolution is primarily concerned. that is from a statement by my predecessor, the leader of --

the legal adviser of 1975, in response to a request from congress about and admit -- an incident during the ford administration to the violence, u.s. armed forces are inflicting are facilitating after the handoff to nato has been modest in terms of its frequency, intensity, and severity. the air to ground strikes conducted by the u.s. are a far cry from the extensive aerial strike operations led by u.s. armed forces in kosovo in 1995 or the nato operations in the balkans of the 1990's, to which the u.s. forces contributed the vast majority of aircraft and air strikes. to be specific, the bulk of u.s. contributions has been provided intelligence capabilities and refueling assets to the nato effort. a very significant majority of the overall sources, the puppies and flown by our coalition partners. of the overwhelming majority of strike sorties are being flown by our partners.

american strikes have been limited on an as-needed basis to the suppression of enemy air defenses to enforce the no-fly zone and enemy strikes black pepper -- predator unmanned vehicles. by our best estimate, senators, since the handoff to nato, the total number of u.s. munitions dropped in libya has been less than 1% of those dropped in kosovo. we acknowledge that had any of these elements been absent in libya or present to different degrees, you could draw a different legal conclusion. but it was the unusual conflicts of these four limitations and operations ltd. in mission, exposure, and risk of escalation, and limited in choice of military means that what the president to -- to conclude that the libya operation did not fall under the automatic 60-day pullout rule. as chairman kerry suggested, we

are far from the court case that most members had in mind when we pass the resolution in 1973. there were concerned about no more vietnams. given the limited military means to risk of escalation, exchanges of fire, and u.s. casualties, we do not believe that the 1933 congress intended that this resolution should be construed so rigidly to stop the president from supporting action in nato- led security council authorized operation with international approval at the express request of nato, the arab league, a gulf cooperation council, in libya's on transitional national council for the narrow but urgent purpose of preventing a slaughter of innocent civilians in libya. third and finally, we fully recognize reasonable minds look at the resolution differently. it would not be surprised that they have since there

inceptions. scholars have spent their entire careers debating these issues. these questions are matters of important public debate. reasonable minds can certainly differ. and with knowledge that there perhaps steps that we could have taken to foster better communication but none of us believe that the best way forward now is for gaddafi to prevail and to resume his attack on his own people. with the u.s. not to drop out of this collective civilian action mission or to sharply curtail its contributions would not only compromise our international relationships and destabilize the region, but would undo nato's progress by permanent gaddafi to return to the brutal attacks on the very civilians whom our intervention has protected. however we may construe the war powers resolution, we can all agree, it would only serve gaddafi's interest for the u.s. to withdraw from this nato operation before it is finished.

congress provided support from a to -- were congress to have provided the support to the mission, ensuring that it often does not regain the upper hand against the people of libya, so in closing i ask that you take quick and decisive action to approve senate joint resolution 20, the bipartisan resolution introduced by senators kerry, mccain, durbin, and others to provide continued operations in libya, to enforce the purposes of security council resolution 1973 and the aspirations of the libyan people. thank you, senator. i look forward to answering your questions. >> to buy. i will reserve my time for such

time as i may want to intervene with my questions. i will turn to senator lugar to start. >> one of the reasons why it is important to have this hearing and likewise debate on this issue is that throughout the middle east and throughout the world, there are a number of situations in which the united states and other nations have severe disapproval of the governments of those countries. we work with others in the united nations to attempt to bring about conditions that are better for the people of countries that we believe are under a totalitarian or a very authoritarian misrule. in this particular instance,

there were other uprisings in t egypt uprisingsunisia which caught the attention of the world. -- in egypt and tunisia. in the case of libya, however, the arab league and the united nations and nato, and what have you, ultimately the united states, made a decision to intervene in a civil war. there was shooting going on in libya. it can very well be that person's organs -- who were innocent not be caught in the crossfire. this is the tragedy of civil wars, i suspect, wherever they may be held on this earth. our decision was to intervene in a civil war, and we're continuing to do that. despite the fact, we talked

about the end of the muammar gaddafi rule, about the importance of gaddafi leaving the country and even sending out rumors that he may be entertaining such thoughts. my basic question is, if we do not have some ground rules. we have to have a more formal declaration of war. this country could decide to intervene in numerous civil wars. it could decide to affect the governance of peoples all over the world. we feel that is unfair. what is your general comment about this predicament? he may feel very strongly that gaddafi world is so egregiously out of line, as opposed to all the other dictators, there's no

doubt we need to intervene, to prevent him from shooting at people who may be opposing him, and they may be shooting at him and his forces. what is the ground rules for dealing with civil war all over the earth? >> thank you for that very thoughtful question. you have been one of the most thoughtful defenders of the constitution, and i recognize the difference of view between what i have expressed in what you have expressed is from a good-faith disagreements. i and understand the concern that you have, but throughout the middle east, there is only one situation in which there is a u.n. security council resolution and narrowly drawn, in which nato has agreed to take command of the operation, in which the arab league supported the operation, in which four muslim countries were ready to

join the countries and had been flying flights, and in which the president was able to structure the mission so there was limited nature so the u.s. would move very quickly into a limited supporting role where there would be no ground troops so that there would be a limited exposure, were the risk of escalation would be low, and were the united states, after the transition, would narrow the means being employed so that only its unique capabilities could be used to prevent gaddafi from using the tools that command and control to kill his own people. so that is a very unusual set of circumstances, and what we're saying is, the president acted lawfully. the wisdom in other countries is the subject of substantial discussion.

it would be complicated to replicate an unusually narrow set of facts. i think our theory and legal approach has been dramatically misunderstood. there's some suggestion that we are flouting the constitution. in fact, we have made it clear that we're not challenging the constitutionality of the resolution. it fits within a resolution that has been on the books now for almost 40 years and which was designed to play a particular role and will have to be adapted to play that role effectively in this century. >> obviously, i raised the question because i fear that there may be circumstances in which we might be staging, based upon the security council or somebody else, to intervene in other situations, like our own war powers, declaration to be

clarified before we get into that point. i raise one more point, and this may require more hearings, and that is, although we say that the force that we're offering is limited, and this could include the missiles we fire or a drone strikes, what have you. my guess is that if another country were employing such methods against us, without employing any troops on the ground of the united states or any of the so-called conventional means of war, we would see this as an act that was hostile. it would clearly be hostilities. very clearly, we would say that is grounds for us to be at war with whoever is firing at us in these situations. this is why i think perhaps the administration needs to work with congress to try to think through, during this time of the drone warfare or a long-distance warfare, that it is not a question simply of whether

american casualties occur or their hostilities on the ground. war in the future may be fought in an entirely different way. perhaps not encompassed by the war powers act, but surely needs to be encompassed by all of this and to be thoughtful about the evolution of these hostilities. >> well, senator, you make two points. i was thinking this morning that the first time i testified before the senate on war powers issues was in january of 1991. as desert shield was about to become desert storm. there was a u.n. security council resolution there. but the question was, did you also need an authorization for use of military force? my position there, which remains the same, is that in that circumstance, despite the fact of the multinational coalition authorized by a security council resolution, the proposal was 400,000 u.s. troops and comparable vessels and accompanied forces, which was

the number of forces in vietnam at its height. the u.n. security council resolution alone does not absolve the situation of requiring approval. what makes this situation unusual is not the existence of the security council resolution, but the fact that the mission that has been structured under it is so limited with the u.s. playing such a narrow and supporting role and with such limited exposure. we're talking about, as senator kerry said, no casualties, and the threat of casualties, and a significant on engagements. another point that has been made by some about our legal approach is that we're somehow suggesting that drones get a free pass under the war powers resolution. that is not at all what we were saying. but you make the key point, when

the statute talks about the introduction of u.s. armed forces into hostilities and what you're sending in is an unmanned aerial vehicle high in the sky, it is not clear that that provision was intended to apply to that particular weapon. it does with the question on how to update the war powers resolution for modern conflict. there will be situations of cyber conflict and other kinds of modern technologies coming into play, which senators and members of congress never envisioned by 1973. so it may well be, and i think you make the point well, that there was an effort here in the wake of vietnam to drop a kind of framework statue that would allocate authorities, called for reporting, try to promote dialogue --

>> thank you. senator casey. >> thank you. i wanted to pursue some of the same line of questioning, and i appreciate the fact that this is difficult as a matter of constitutional law, but also difficult as a matter of policy and perception. i hear a lot from people in pennsylvania that have real concerns about this policy, not only on some of the constitutional debates we're having but just in terms of the clear impression that has been created that we are engaged in hostilities of one kind or another. it's very difficult for people to separate from that

perception. there are reports, we know, at least according to the "new york times," that since this handoff to place, that u.s. warplanes have struck, according to this one report, 60 libyan targets, and at the same time, unmanned drones, according to this report, fired at libyan forces roughly 30 times. in the context of that reporting, i would ask you about this a broader question, i guess, are this more poignant question. as it relates to the administration's justification of drone attacks -- on drone attacks as so-called non- hostile operations. how do you get their just as a matter of law?

>> thank you, senator. i appreciate again the thoughtfulness of the question, which i think is a very good one. in the early days of the libyan action, as secretary gates described, the goal was to create an no-fly zone. to prevent gaddafi from attacking his own people. as we point out, footnote 5 of my testimony, gaddafi appears to have rules of engagement call for indiscriminate attacks on his own people. no mercy rules, rape as a weapon of war. these have led to but the commission of inquiry and an arrest warrant against him yesterday at the international criminal court. the question of what kind of military mission to structure to respond, and the core of it was, first, the establishment of the no-fly zone. second, for the u.s. to shift

from a lead role into a support role. and the bulk of the contributions, as i have suggested, have been primarily intelligence, refueling, search and rescue, flyovers and the like, with no fire at all. but there are two elements that have been added to the picture. one is mirrored defenses. it gaddafi's command and control existed and if initial efforts have been made to destroy that command and control, and he shifts those operations to other command and control, he can replicate his capacity to kill civilians such a move from one and then stop is simply allowing gaddafi in a game to return to the very acts that led to the intervention in the first place. that has been the basis of the notion that american strikes should be authorized on an as-

needed basis to suppress enemy air defenses to enforce the no- fly zone. and then, the unique capabilities that american military forces have been requested by the nato allies to hit particular discrete targets to support the civilian protection mission, particularly command and control or other kinds of anti-aircraft, which are difficult to reach by other means. let me emphasize again some numbers that i gave earlier, because i think they are important. in the overall number of sorties that have been flown, the united states is flying a quarter. but in the strike sorties that are being flown, the united states is a flying only 10%. the predator strikes, as you suggested, are a relatively small number, and the total number of munitions dropped by

either manned or predators at this moment, according to our best information, it is less than 1% of the amount that was dropped in kosovo, in which there was a substantial debate over the application of the war powers resolution. so you came back to the question -- are we engaged in hostilities? as i said, this is not a parsing of dictionary terms. it is a statutory provision. congress passes provisions of the time that have terms of our like, emergency, the word treaty in want statute was recently read to me in an executive agreement. i am sure the foreign relations committee will have questions about that. the words chosen here was hostilities. over time, hostilities has been defined through executive and congressional practice to encompass some level of strikes were the major focus, as i have

suggested, being on whether the mission is limited, whether the risk of escalation is limited, whether the exposure is limited, and whether the choice of military means is narrowly constrained. it is within that set of four limitations that apply here that it was our conclusion that we are well within the scope of the kinds of activity that, in the past, have not been deemed to be hostilities for the purposes of the war powers resolution. >> i will ask some other questions by the way of supplemental written questions. i would ask you, as well, i connection with this, are you concerned about the press in here as a relates to executive power? you have any concerns about that? and you think that this is breaking new ground? >> they're two different questions. of course, i am concerned about the precedent. i spent much of my academic career writing about the balance

of powers between congress and the executive and foreign affairs. in 1990, my first book on the subject, i pointed out that the basic structural flaw of the war powers resolution, which has a number of virtues. one of the virtues is that it promotes dialogue through a blunt time limit. but one of its structural flaws is that it requires an automatic pullout without congress ever having been made a specific judgment about whether or not they approve or disapprove of an action. and that could lead, in certain circumstances, to atrocities resuming because of the lack of a clear congressional stance. the goal in the vietnam era was to try to find a single congressional position that could be applied. i agree that there have been cases which the executive branch has overreached.

i have written about this in my academic work for many years. which is precisely why the precedent here, we think, has been narrowly drawn. as i said, we're not challenging the constitutionality of the resolution, which a number of administrations have. we're not saying the war powers resolution should be scrapped, whether it is constitutional or not. what we're simply saying is that when the mission is limited, the risk of escalation is limited, the threat to troops is limited, no ground troops. and win at the tools being used are extremely limited, that that does not trigger the 60-day clock. and in doing so, we look to executive and congressional precedents dating back to 1975. the persian gulf tanker controversy, lebanon, somalia, grenada, to see where it fit. and when you have a situation in which something like kosovo or bosnia, campaigned

we are talking here about 80 casualty, little or no risk of escalation and 1% of munitions, that strikes us as a difference that ought to be reflected. the rationale i am presenting today, if any of those elements are not present, none of those at necessarily apply -- you have to redo the analysis. >> thank you, mr. chairman. i have heard many cases where you have tried to justify the ends or the means for the end -- and eddie have talked about libya and muammar gaddafi in your handling of this. those are two very, very separate issues.

people have very differing opinions about what is happening in libya but still have strong concerns about the way the administration has handled the process itself. i do not think it is helpful to meld the two together and i think of waters down the issue at hand. i find a humorous, sitting here on the foreign relations committee, the most deliberative body in the world, some say. basically you guys have not provided witnesses from the department of justice or the pentagon. we seem to take that as a humorous thing. the administration has basically said there's no reason for us to get any better resolution from congress, and yet the senate today in this urge to be relevant is rushing to give the administration irresolution even though it is basically saying in this case that the senate is irrelevant. i want to ask this one question -- now you have taken this

argument and seen the response you got from both sides of the aisle, are you still glad that you have travelled this route as it relates to the argument you have made about the war powers act? >> senator, i believe this argument. i think it is correct. i would not be here if i did not believe it. >> i did not ask that. are you glad that you created an issue where no issue had to exist by taking this narrowly defined route and sticking a stick in the eye of congress? is that something you are glad you have done? >> senator, that was not our intent. you felt they stick with stock, that's not our goal. you have said a number of things i thought i should include in my answer. one, the war powers resolution is not a mechanical device.

it has to be construed in light of the facts of the time. otherwise, the 1973 congress would be making decisions instead of the congress of 2011. it has to take account of the circumstance. with regard to witnesses, i'm the legal adviser of the state department. the footnote in one of my testimony reviews, times the legal of visor's have appeared before this committee and others -- this is my committee of jurisdiction. you voted my confirmation. so i am here for the conversation. it was our position from the beginning that we were acting consistently with the zero or powers resolution, but we would welcome support because as senator lugar said, it would be -- a president always value a bipartisan support for this kind of effort or mission.

finally, you asked whether we have made errors. i think this controversy has probably not played out exactly as some would have expected. i'm sure there are many places where someone 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. for my part of that, i take responsibility. but i do believe that the end of the day, the last thing we're saying, the thing we're not saying, is that the senate is irrelevant. >> we are making ourselves irrelevant. let me do this. this is a long answer. i want to give the respect of answering. i would like to have a couple of extra minutes -- if you want to say anymore regarding my opening

comments -- >> however the legal question is addressed, there is a fundamental question of what to do about the civilians in libya. that is a decision on when it should the senate can make a decision this afternoon. >> i do not think making decisions are any different from what came out. we are rushing to make ourselves irrelevant by passing something al that basically says -- you know what it says. the chairman mention that since no american is being shot, there are no hostilities. by that reasoning, we could drop a nuclear bomb on tripoli and we would not be involved in hostilities. that goes to a preposterous argument being made. one of the issues of precedents you are setting is that predators now, the president of the united states, and the

justice department of this administration has spent lots of time trying to deal with people's rights as it relates to terrorism and that kind of thing. yet basically, what you're doing by arguing this narrow case, as saying any president of the nine states can order predators strikes in any country and that's not hostilities. we know what predators do. i think you know what they do. lots of times human beings are not alive after they finished their work. arguing're doing is that president can order predator strikes in any place in the world by virtue of this narrow argument yet taken. that is not hostilities and connors plays no role. >> that is not what i am arguing.

the obviously, s credit -- of a predator strikes were at a particular level or floor carpet bombing using predators, that would create a dramatically different situation. but the scenario i have described to senator casey is a very different. within the constraints of this particular mission, without ground troops, the predators are playing a particular role with regard to the elimination of certain kinds of assets of muammar gaddafi being used to kill his own civilians. even the numbers senator casey mentioned are not close to the kind of level we would consider to be ones that would trigger the pullout provision. the important thing and the thing that has been asked is are we presenting a limited position? yes. because all four limitations

are what bring it within a line of the statute. we do not say any element of could be expanded out of shape and require reexamination of the war powers resolution. i gave the example of the un security council designation, desert storm, that required approval because of the scale of the operation. >> i think the president has established a precedent by taking this argument that any president can use predators in any country they wish because that is limited hostilities without congress being involved. i'm probably going to come to a close quicker than i won because of the time. we do have limited time flying over ltd. -- over libyan airspace, do not? >> yes. >> we do know there are numbers

of types of weapons that they have that could take down our aircraft that are not necessarily lead fixed positions, correct? >> that is correct. >> to say our men and women in uniform are not in a position to encounter hostilities is pretty incredible. you cite that hostilities has never been defined. i read the house conference which basically reported out the war powers act. they tried to make it a lesser level. they started out with armed conflict. they started out with hostilities and did so in such a matter to talk about the kinds of positions that exist on the ground. when you say these are not hostilities, that is patently not the intent of congress when they pass the war powers act.

you introduce a mathematical formula. i'm sure future presidents will use a mathematical formula if we are only doing x% of the bombing than we are not involved in hostilities. but i find that not in any way to jive with what the house sent out in its reporting language. i know my time is up and the chairman is getting impatient. i did not support your nomination. i thought you are right there -- a very intelligent person, very well learned. but i felt you had the likelihood to subject u.s. law or to cause it to be lesser important than international law. while i made no statement to that effect publicly, i told you that privately when we met in our office.

that is exactly what you have done. you have basically said the united nations has authorized this and there is no need for congress to act. we're going to narrowly defined hostilities. i would guess at night, however people of your categories get high-five's, you're talking to other academics about this cute argument that has been utilized. i think you have undermined the incredible -- the integrity of this the destruction and the integrity of the war powers act. by taking this very narrow approach, you did great disservice to our country. i do hope as some point we will look at the war powers act in light of new technology and in light of new conflicts and define it in a way that someone using these narrow and defeat arguments does not have the

ability to work from congress. >> i was not growing impatient. i think it is time -- is important to give you time to these conversations. i value our relationship lot. i do have to tell you based on what you just said that your facts are incorrect. your basic facts on which you are basing your judgment is incorrect. let me tell you why. first of all, the president of the united states accepts the constitutionality of the war powers act and sought to live by it. no president has done that yet. >> i did not argue that. >> you come to the next point. having done that, the president sent us a letter before the expiration of the time.

in the letter, and i'm going to put that in the record, he says the dear mr. speaker, and the president pro tem and the senate, march 21st, reported to congress that the united states, pursuant to requests from the arab league and authorization by the united nations security council to prevent a humanitarian crisis in libya. i could read the whole thing, but he says, pursuant to our ongoing consultations, i wish to express my support for the bipartisan resolution drafted by senators kerry, mccain, feinstein, levin and lieberman, which confirms the congress supports the mission in libya and both branches are united in their support of the libyan people. he asked us to do that before the expiration of the 60 days. but we did not do it. do not blame the president. the congress of the united states did not do it.

let me tell you why, bluntly. both leaders in both houses were unwilling to do it. let's be honest about this. >> i am being honest about this. i have the ability to express my opinion just like you did. and to use the facts just like you do. i do not want to get into a debate about this right now. >> you are not letting me finish my point. you are saying the president violated the process and did not come to the congress. he did come to the congress. he sent us a letter due to authorization and we did not do it. that is the simple fact here. moreover, there is a constitutional question here because in paragraph b of the war powers act, it says the president shall terminate any -- will submit it unless the congress has declared war or has enacted a specific

authorization within the 60-day time frame. if congress does not act, congress can in effect by its lack of action challenge the constitutional right to do something. that is a constitutional standoff. any senator could have gone to the floor of the senate with a resolution during those 60 days. no senator chose to do so. all i am saying is i'm not going to sit here and let everybody throw a dart at the white house saying the president violated this or that. secondly, sent us a letter before the expiration of the time asking us to pass the authorization. third, i will say this as a chairman, nobody wanted to do it. so, here we are. the relevant question is -- i

agree. there are some serious constitutional questions about predators, how did they fit, and i think the legal adviser has accepted that. we need to exercise our responsibility to modernize this. but there fact that hostilities are taking place, and they are, does not mean the united states armed forces have been introduced into those hostilities of their not being shot at or not at risk of being shot at. if there is no risk of escalation or of the mission is narrowly defined. i know none of us want to get trapped in the legalese here. we want to try to do this in the right way, but it is wrong to suggest that somehow the president went outside the constitutional process here when in fact, congress, us, has done nothing in the 60 days to declare war or not. >> i would just respond that i

think the central element of my argument to mr. koh, , i respect his intellect but i don't respect his judgment on this case. the focus of my argument was hostilities. by a nearly defining that are being cute by where you say i support the constitutionality of the war powers act but on the other hand, since we are not really involved in hostilities, we don't really need to deal with congress. that's the part. that just happened on the 15th. i don't think anybody in this body had any idea that the president would take such a narrow, narrow interpretation of hostilities. i don't think anybody knew that. i think the president wishes he had handled this differently because what has happened is, by

being cute, they have introduced a whole other debate that should not be taking place. my guess is they might have gotten overwhelming support for a limited operation whether i support it or not. what they have done by trying to have it both ways, which is what they did with the june 15th letter, is interject a debate that has to do with credibility, integrity, and to me, is a great disservice to this country. i stand by what i just said. it is factual. i would be glad to debate this all along. >> hopefully we don't have to do that. without we can do it debating it all along. but i do think it is important. i did hear you say are rushing to get a resolution and i heard you say the senate is irrelevant. i think when you measure those things against the reality of what the president asked us to do, any of this issue is because the senate has been having a

very difficult time getting anything done lately. >> thank you, mr. chairman. i would like to express my appreciation for senator cor ker showing me how to get seven -- had it 25 minutes out of seven minutes. in reaction to the exchange that just took place, one of them is whether or not the president's consulted with certain people in the senate and whether or not there was a request for us to validate the aged -- the actions, the issue before us now is the administration is coming to us nothing the war powers act is not apply in this situation because of their very narrow and, in my opinion, contorted definition of hostilities. that is the issue before us,

about the other one. i would just like to say i think the most unusual part of this decision was not simply the issue my colleague raised, which was a very important issue in terms of indirect fire, but the use by a president of a very vague standard that he can unilaterally inject military force into situations around the world based on a vague standard of humanitarian assistance. we have not seen that before. that's something that demands a certain amount of accountability. this was the major reason i started to become concerned with the way this operation was unfolding. but i will say we have an operation that goes on for months, cost billions of dollars, where the united states is providing two-thirds of the troops, even under the nato figleaf or dropping bombs that

are killing people or paying your troops offshore combat pay, and there is the prospect of escalation -- something i have been trying to get a clear answer from this administration for several weeks now -- that is the possibility of a ground presence in some form or another wednesday regime expires. i would say that is hostilities. there was a debate inside the administration on this definition, was there not? >> the president took the position -- >> but there was a debate as to the issue of whether this constituted hostilities. we read about in the paper. >> just yes -- >> just yes or no. >> i cannot comment on illegal -- >> there is plenty of reporting

that there was a good bit of debate as to whether this was the right way to go. what do you make of the fact military people offshore are receiving combat pay? >> there also suit -- there are also receiving it in greece, the negroes, saudi arabia, turkey and other countries and the same provision. it doesn't mention hostilities and i don't think anybody believes we are in a war powers situation in this country. -- in those countries. these are hard questions. >> i don't mean to interrupt you, but i've really only have about seven minutes here. >> demand danger pay is given on a different basis than hostilities. -- imminent danger pay is given on a different basis than

hostilities. at the end of the day, this is a question of statutory interpretation. it is not the administration saying drones are not covered. the question is whether when you have an unmanned aerial vehicle, that's the introduction of u.s. armed forces in a statute drafted by congress. if that language along or works -- >> just in general, if you are engaged in a vietnam-type military operation, which i was, you have certain support elements providing in direct assistance to the people putting bullets on the battlefield. i really don't see any distinction here because in the vietnam environment, i was a journalist in afghanistan, i was a journalist in beirut.

not everybody is a trigger- polar. the definition between aircraft that are revealing the bombers or conducting intelligence activities or surveillance is an artificial distinction. >> nobody is saying something replicating vietnam at this moment would not be -- >> i'm not talking about vietnam. i'm talking about afghanistan or beirut -- same thing. >> i think you make the most important point of all -- these are points of judgment. in your role in the navy, you made that judgment. it is not a mechanical formula. whether the mission has been shaped this particular way in this particular setting with this particular risk of escalation exposure, which are very low -- >> you repeated that language several times today. i understand the language.

let me ask another question because it's a very important question. we still have not severed relations with muammar gaddafi's government, have we? if we have, it's the last week or so. technically, we still recognize this government. would that be a correct interpretation? >> we are trying it to all the responsible -- >> give me a legal answer. we have not severed relations. is that correct? >> the reason for that -- >> it their relations -- >> they have been suspended but they're not severed. what's the constitutional limitation on the assassination of the head of state? >> the assassination of head of state is restricted by executive order. that executive order is enforced.

the admiral has made clear that despite press reports, he has not expressed a view -- airline >> the executive order would say -- there is a preclusion against the assassination of the head of state? >> the wording of it is an unlawful act. the interpretation would depend on the facts of the situation. the reason for the lack of severing is so that the government can remain an spot -- and remain responsible under international law for the things gaddafi is doing using the forces of the government. >> i understand that. you cannot distinguish that on that point any more than it is relevant in -- relevant to distinguish out hostilities base of these other realities. people will have differences of opinion on that. there is a lot of talk about the way in which muammar gaddafi

should exit. nobody appear once in to remain. but the moral standard we sat on issues like this is the same one we should expect. it is a point we need to be thinking about. >> it's a good point. i'm glad you raised it. i don't want you to feel cut off. the purpose of having a limitation is that everybody is here. if there are four or five of us, i have no problem letting senators go longer. >> i feel well taken care of today. >> thank you for joining us today. i want to start by thanking the members are of -- our armed forces, those who sacrificed so much to themselves in harm's way.

the discussion today has a number of questions important to national security. especially when we consider there are lots of places in the world where our national security is placed in jeopardy by some of the things people are doing and people are saying. i think it is appropriately have this discussion because we want to make sure when we deploy these people, these brave young men and women who serve us so well that we are doing so in a way that maximizes their utility in protecting the americans at home. how do you define the terms hostilities as used in the war powers resolution? >> the effort to define that, and this is described in the

descriptions of the conversations of the sponsors was to leave the matter for subsequent executive practice. senator corker mentioned the term armed conflict. there was an irony -- armed conflict is a term of international law. they did not import that into the statutes precisely so international law would not be the controlling factor. the net result was in late 1975, under the ford administration, during that administration, congress in the first footnote of my testimony invited the legal adviser to come forward with a definition of hostilities from the executive branch and apply the judgments we are describing

here. in my testimony, i described the response given by mr. li and his co-author in which they essentially set forth a standard. this is on page 6 of the testimony. they said the executive branch understands in which armed forces are engaged in exchanges of fire with opposing units of hostile forces. they said the term should not include situations which were once in which the nature of the mission is limited, where the exposure of forces is limited, the risk of escalation is limited or when they are conducting something less than full military counters as opposed to surgical military activities. >> where is that from?

>> page 6 of my testimony in the first footnote, the letter from the state department legal adviser. with regard to the scientific affairs ought international relations. congress acknowledged it did not know what hostilities meant from the legislative history alone, so they invited the executive branch to give clarification. >> i do not disagree with the broader definition, but like so many definitions, that one has been severely undermined. doesn't it strike you as something a little bit dangerous to say even when we have our own armed services or personnel firing upon the military

establishment, the radar systems and other components of foreign nations defense system on foreign soil, regardless of what we have boots and the ground, it seems to me to be hard to say it does not involve hostilities. given the limitations of our time, i would like to come back to this if we have time -- in your opinion, is this question of the constitutionality of the war powers resolution 1 that logically could or would be resolved in any article 3 court proceeding in light of the political question doctrine and immunity that might be enjoyed by one or more parties to any suit that might be brought? >> i think it's a good question. i think it's highly unlikely.

there was in the vietnam era a number of cases. some cases did get into court. but the general pattern of the case law has been these suits have been dismissed on some preliminary ground. going to the earlier point, which someone is firing when there are booths on the ground, does that rise to the level of hostilities. in prior administrations, in situations in lebanon, grenada the persian gulf tanker controversy, bosnia, kosovo, all were circumstances in which there were casualties and boots on the ground. many, many more munitions dropped. those were not deemed to be

hostilities. it is on that basis we have come here saying this actual situation fits within the frame of hostilities as it has been understood and does not trigger the 60 day limit. the final point -- >> i know you have a final point you want to make and have a final question i want to ask. for purposes of the discuss and here we are dealing with hostilities. if you agree that we were dealing with are still a lease. would the president not have to justify -- when the president have to articulate a military justification for our involvement based on the

language in section 1541, meaning they are justified by a statutory authorization for congress by a definite -- declaration of war or a national emergency created by an attack on the united states by its territory -- on its territory. wouldn't that be the president's duty? >> the president has complied with the reporting provisions. talking about the reporting obligations. the requirement in section 1541 that says, recognizes the constitutional power, the article to commander-in-chief power of the president to introduce the armed forces into the skillet these are exercised only pursuant to a declaration of war caused-story authorization or a national

security, and emergency created by an attack. that's what i'm talking about. >> as you can imagine, these are questions that have been debated for years. that's a statement by the 1973 congress by what it thinks the president's capacity is to introduce forces. take the professor from columbia law school and his book on foreign affairs and the constitution -- he describes our range of military actions last of hostilities and less than war that have been done outside the scope of that. the question is is that an exhaustive list or is it not an exhaustive list? the critical point here is what we are doing here is the provisions of the statute from our perspective are not triggered. therefore we do not even get to the question whether the constitutionality of the statute is in play.

we have no intention in this situation to raise that issue and we are operating as a matter of good faith statutory interpretation based on the very unusual facts present here. >> thank you very much. >> thank you. i would like to thank the chairman for his leadership for convening five different hearings on the actions in libya and i would like to thank senator lugar and others on the critical questions that pertain to the war powers resolution. in the face of the atrocities committed by muammar gaddafi this year, the united states did have an obligation to protect the libyan people from the very real threat of massacre. i supported and applauded 1973 to protect libyan civilians and was encouraged by the strong international consensus surrounding the issue and have supported u.s. military gateman as one per punt -- one component of the project led by nato.

i have real and growing concerns about the approach to the role -- the war powers issue in the president the president has said here. i have always found to enable and compelling advocate i'm reminded -- i'm reminded of the old saw -- when the facts are on your -- today, you have argued the facts. yet argued as ably as one possibly could and explained a very narrow reading of hostilities. a number of the senators to have spoken before me reflected the fact our constituents are finding very real tension between a common sense understanding of hostilities in the exercise of statutory construction in which you are engaged in your role to define these narrowing factors of mission, exposure, and means of escalation. the only part of the senators,

and i would agree with is the concern about the statistics and the use of the percentage justification. other than that, i find your focus on the unique facts of the libyan situation largely compelling. i am hopeful that later today our committee will move to make an appropriate resolution to this ongoing impasse between the administration and the senate. you repeatedly referred to one of the good outcomes of the war powers resolution being it promotes enter branch dialogue. i suspect you've got a good deal of that dialogue today. a few questions i would be interested in hearing your input on -- understanding and respecting the difference in our constitutional rules. i would urge you to answer this in the context of the others -- what else could we have been doing between the branches to foster that dialogue. as you know through a scholarship, the war powers resolution is a rough-hewn

artifact of its time. i've been very concerned that through a lack of respect and application, it has drifted into near irrelevance. i was encouraged to hear the testimony that suggests this administration of firms its constitutionality, its relevance going forward, and i would hope like to work in partnership to find ways to make it an effective tool a better bridge dialogue. first, and your response to senator lugar, he said drones do not get a pass under the war powers resolution. you also made a telling reference to cyber warfare. the department of defense just issued a new statement on cyber warfare policy. since you have given great thought to these questions, how might you suggest we update the war powers resolution to reflect the reality of modern warfare, one in which many of the factors cited by your predecessor could not have anticipated and reflect some of the points raised by

center webb, or the threat of escalation might be limited and the very real understanding of hostilities would be if engaged in war. that's my main concern of the strained and narrow reading of hostilities we have in front of us today. how would you updated to take account of these modern developments in the war capabilities of our nation? >> thank you, senator, and i appreciate your thoughtful remarks. the number one, if we are concerned about unmanned uses of weapons that can deliver huge volumes of violence, festive a -- a statute that deals with the introduction armed forces does

not deal with that situation. at times the war powers act passed, they were not -- or think about vietnam. they were not thinking about drones or cyber attacks. to change the law to reflect the modern realities of conflict. second, the war powers resolution functions in a way to promote dialogue by a deadline. while it is unclear what triggers the deadline and where the state of affairs is supposed to trigger the deadline is deliberately vague. it puts the congress and president in a position -- to decide if the urgency of the deadline actually promotes a dialogue -- in a book i wrote a number of years ago, i address that by saying you could have a statute that directly requires

dialogue between congress and the executive branch. particularly a group of senior leaders of congress. the bill was discussed for a long time. a very distinguished commission led by jim baker, warren christopher who had been passed away, and lee hamilton proposed another way to consider the question. as much as any of you, i agree this is not a mathematical calculating aren't -- calculating machine. it requires judgment. therefore, it's important to

try to direct -- try to get away from false metrics toward things that reflected judgments made through inter-branch dialogue. i think the process here is putting us to the question, if the legal issue is resolved one way or another, the choice remains what to do about the civilians in libya. did the 1973 congress intend they be left unprotected after 60 days or did they not think about this situation? this goes back to the major structural flaw of the war powers resolution has been a requires an automatic termination after 60 days without congress making a specific and judgment as to whether this is a case they like

to authorize force or not. you cannot run these kinds of things by autopilot. it has to be done through judgment, belittle judgment of the kind you exercise every day. >> if that particular provision in the act, one that compels an action through the inaction of this said that may seems to have reflected the inclination toward -- one other question i would like to get to is the on the question of expropriating funds or taking funds of the regime with which we have suspended relations but where we have not yet recognize -- what is the -- where the foreign- policy implications. the council to serve with me identified a provision of the patriot act with which was previously unfamiliar that

claims it's illegal for the united states -- what if any tensions d.c. with the war powers resolution and patriot act and what of the challenges we might be raising in the future given the likelihood we are going to proceed to expropriate and reallocate funds that are legally controlled by muammar gaddafi's regime. >> that's an excellent question. the legislation that has been proposed is designed to address the question precisely because under the international emergency economic powers act was designed as a freeze, not sees. -- not sieze. you could proceed under which

describe for vesting. there is still the question of international law about investing because expropriations, as you know, from the cuban examples, raise questions of international challenge. i think the best approach is to enact a vesting legislation which i think, instead of putting into a past historical frame, is a specific application of congressional judgment to deal with this situation before you now which calls for some consideration of how to get resources to the tnc and the people of libya. >> thank you for your testimony and i look forward to working with you on these issues. >> thank you. i have been watching from afar on the tv broadcast and i am intrigued by the creed of explanations we have had here today.

i want to give you a quote from then senator obama in december of 2007. he said the president does not have power under the constitution to unilaterally authorizing military attack in a situation that does not involve stopping an actual or imminent threat to the nation. i have heard the discussion of that. is that still his position? >> the key word is military attack. is that from "the boston globe?" >> this was not just one publication. may have originated there. how many angels can dance on the head of the pen when you're talking about military air attack or is it a hostility -- it seems to me he was clear in this statement. is this still his position? >> as i am understand it, there was a series of questions posed

to various candidates and answered by their campaigns. my own view of that phrase -- that was not involved with the campaign, is that it is an overly ltd. statement of the president's constitutional authorities. i think instead of military attack, if it said make war, that would be a correct statement of law. >> this is all the same thing, isn't it? >> make war has specific meaning under the constitution. >> are we making war on libya? >> we are not. not for purposes of the constitution. i said that in my testimony. >> is this or is this not the president's position at this time? >> the position of the president with regard to this actn is set forth in my testimony. >> can you give me a yes or no? is this or is this not the

president's position at this time? >> i did not hear it clearly enough. >> "the president does not have power under the constitutional -- and the constitution to unilaterally opt rise in a military attack in a situation that does not involve stopping a national imminent threat to the nation." >> i do not think that is legally correct. >> i'm not asking about legally correct. is this or is this not the president's position today? >> i have not asked, but i would be surprised because i do not believe it to be legally correct. >> i'm not talking about that. i'm talking about the president of the united states. is this or is this not his position today? >> i do not know. i have not asked him that question. i do believe the same rules applies to presidents of both

parties and i believe the general understanding of the constitutional structure would be that is too limited a statement for whoever is president. >> as you know, president obama's press the -- predecessor, for every conflict that occurred under his watch, he came to congress and ask for authorization. you are aware of that, of course. >> president george w. bush came with regard to 9/11, the authorization of military -- authorization of use of military force with the respect to the taliban and al qaeda and he came with regard in iraq. >> notwithstanding these other explanation than arguments, don't you agree with me that would be a really good idea to come to congress and ask for that authorization under the circumstances? >> my understanding is the administration has, going back to march 23rd, expressed it

would welcome this support. it has also taken the position from the beginning acting consistently with the war powers resolution. i think you are putting your finger and the important question, which is the debate over a lot can go on forever. but there is an important and urgent question which is what happens to the civilians of libya. that's a decision that can be made by this body, this committee and then by the senate as a whole. >> you can go beyond that. you talked about the citizens of libya, but we have a serious situation in syria right now. the syrians are not even armed and they're being attacked by their government. verses libya, where there is actually armed conflict going on. you would agree with that, correct? >> senator, this is an exciting time at the state department. what can i say?

there's only one of these countries with respect to the un security council and nato mission with this level of detail and this kind of design role. the analysis we are describing applies to the libyan situation. >> my point is that it deserves a debate the american people can hear. is that fair enough? >> the more dialogue and debate on these matters of life and death, the better for all of us. >> thank you. >> thank you, mr. chairman and thank you for holding this hearing today. we appreciate you being here. i think i am last. hopefully there's not too much additional time you will be required. it was recently reported the u.s. admiral in charge of native statedoperations command a -- and i'm not stating this exactly -- he said the removal

of the chain of command is consistent with the justification to protect citizens. do you believe that statement is consistent with the un security council resolution and native troops, if they are actively seeking to topple muammar gaddafi that that is consistent with the resolution? >> the un resolution calls for the protection of civilians in civilian populated areas. native does not target individuals. they have made it clear they are not targeting individuals. earlier, i think it may have been before you came in, i pointed out there was a report and admiral had made a comment about the real mission being to target khaddafi. -- to target gaddafi.

that is not the rules of engagement they are falling. >> to follow that a little further, how would you differentiate between degrading the regime's ability to attack civilians and actively targeting muammar gaddafi himself? is there a line there you can draw or -- >> most of that -- most of it is focused in the operational terms, centered on the destruction of equipment. radar, and-aircraft, which can be mounted on fixed and mobile devices. the targeting has been directed at that command-and-control. i note in my own testimony that his own forces rules of engagement seem to authorize

them to indiscriminately attack civilians and therefore, if they have the apparatus by which they can do that, large numbers of civilians would be killed and we would not be serving our mission, which is to protect the civilians in the civilian- populated areas. with regard to be targeting of leaders, i think the important point to emphasize from the beginning has been this is a multi-tool operation involving diplomacy, development, asset freezes, and a unanimous referral of this to the international criminal courts and the arrest warrants were issued yesterday. as was the case with slub on milosevic, hey -- slobodan milosevic, removal to international criminal trial,

not necessarily through the trials of conflict. president milosevic, sometime after the close of the episode when to the hague where he was tried and he died there while a prisoner. >> i would like to ask some questions relative to the transitional national council. what the thinking is of the justice department relative to recognizing the tnc formally. if we were to do that, does this have an impact on our policy, our legal policies with respect to libya? for example, how we would deal with any assets?

>> senator, international law focuses on the question of recognition, and recognition tends to follow facts on the ground. as a general rule, we are reluctant to recognize entities that do not control entire countries because then they are responsible for parts of the country that they do not control. we are reluctant to recognize leaders that control parts of the country because then you are absolving them for parts of the country that they do control. recognition is not the only tool. there are ways to acknowledge that a particular entity is an illegitimate entity of the people. that will obviously and then go to the question ultimately of the extent to which the various

assets can be available to the new libya as opposed to muammar gaddafi's old regime. >> with respect to those frozen assets, -- how are we dealing with those assets and the tnc? are there any restrictions that we have put in place about how they can be used by the tnc either now or should the tnc gain control of the country? >> a proposal to try to address the question -- meanwhile, at their regular meetings attended by the secretary in which other countries have made it available to their resources to the tnc bank accounts, etc., so the process of supporting the tnc is a long term process that requires close cooperation among

allies. >> the access to the bank accounts that you refer to it -- are those bank accounts that would be considered to be part of the frozen assets? >> well, it is always a complicated situation when bank accounts are held by one regime but they appear to be for the purpose of a broader group of individuals. senator luger faced this issue in the philippines. exactly a sorting out who is entitled to gain access to the frozen resources is an exercise in which we are actively engaged. >> thank you. >> thank you, senator. we are running up against a couple of time conflicts. there is going to be a vote, perhaps several votes, around

12:10. so we are going to excuse you at this point in time to your chagrin and everlasting sorrow, i know. we are going to try to get both of our scholars to be able to get through their opening testimonies and then you can begin if you want to collect your papers and we can try to transition as seamlessly as we can. i want to say to both of our members of panel two -- first of all, i apologize to the committee for the length of time that the first panel took. this is obviously an important topic and we do not want to give short change to your testimony. what we would like to do is kick your testimony on the record

following -- one of you is in philadelphia and one is in nearby, if we could and need to call you back in order to do this perhaps after the break and finish it and leading off with your panel. we would like to do that unless the senate floor process cooperate in a way that lets people get back here after the vote. we will not know that until we know what happens on the floor. we would like for you to come to the table now. thank you for coming up today and being a part of this discussion. it is a very important one. we appreciate it. mr. fisher, if he would take your places, we look forward to your testimony. you can place your full testimony in the record.

again, we are grateful for your patience for taking time to be with us. i do not have you -- i do not know if you have all arrangements as to who will lead off. go ahead. thanks. mr. fisher. >> thank you very much. that was a very productive two hours. i learned a quite a bit. i have a number of things to say to summarize my statement. i wanted to pick up on what was said about the framers who were concerned about executive wars, that they had an incentive and motivation. whatever the framers thought in the 18th century, some think it has no application. my judgment is what they were worried about was executives getting into wars that were damaging to the country in terms of lives lost and fortunes

squandered is particularly relevant today after we have seen wars, the great cost the ones, vietnam, korea, and iraq. so i am very much for the proposal that the decision to use military force against another nation that has not attacked us or threatened us is for congress. i will underscore that. a member who serve this committee for many years recently gave an analysis of the war in libya and said that the constitution "places the decisions to go to war in the hands of congress." that is my position. that was the position from 1789 to 1950, all major wars either declared by congress or authorized by congress.

in 1950, that is when it was broken when president truman went to war against korea. it is a recent departure from the constitution. i give some examples in the first part of my paper about president not talking straight which many people might find offensive. in fact, that is what president do. truman says it is not a war, but it was a police action. one thing that has not been said this morning at all which concerns me is the position by the obama administration that they received authorization from the u.n. security council. my position is the security council cannot authorize any military action, can not mandate any military action. if you believe that, you would have to say that the u.s. and

treaty transferred article one power from congress, not just from future senates, bought for house of representatives, to another constitutional body. i do not think you can get authorization from the security council. you have to ask what authorization did president obama have for this activity. president obama said "it has always been my view. this is not the boston club. -- "it is always been my view that it is better to take military action at such as this with congressional engagement, consultation and support." that has always been his view. in february when this began to unwind in libya, i think it was his obligation in february to come to congress and get the authorization. the second part of my paper is

authorization from nato for the same reason nato allies cannot authorize the united states to take military action. it is the same problem. treaties cannot amend the constitution or take congressional power to give to outside congressional bodies. i think we have talked a lot about whether libya is a war and whether libya has any hostilities in both cases if the administration takes a position that u.s. casualties alone are neither a war or hostilities. if you have a superior force like the united states, you could pulverize a country and have very few hostilities and it would be neither war nor hostilities. i think it is an unpinnable view of any nation.

you could bomb from 30 dozen feet, send in drones, -- 30,000 feet, send in drones. if anyone did that to us after day one, there would be a war and hostilities. we did not ask during pearl harbor whether the japanese suffered any casualties. we knew from the first day that it was war. the last part of my paper gets into this non-kinetic assistance. i think there is a connecticut assistance. once you give is supporting role to nato -- kinetic assistance. it took 35 seconds to support on the floor, and a lot of senators objected that they did not know how it had been modified for a particular no-fly zone.

the administration talks about international mandate, the mandate from the arab league and from the security council, etc. president obama said "from a mandate from the united nations." there is only one permitted mandate under the u.s. constitution for the use of military force against another nation that has not attacked or threatened us, and that mandate must come from congress. thank you. >> thank you very much, mr. fisher. >> thank you, mr. chairman. good afternoon to you. thank you for the opportunity to testify before you today on the issue of libya and war powers. in my view, u.s. participation in the operation has been lawful. the president has authority to initiate participation in this

operation without advanced authorization. that participation continues to be lawful. the interpretation of hostilities is it possible one. although not free from doubt. i understand concerns on the part of members of congress with respect to this interpretation. congressional participation and war powers decisionmaking is important to the execution of a national foreign relations. however, the war powers resolution does not apply a useful vehicle for facilitating inter-branch cooperation. >> the votes have started. i am going to go over there to see if they can prolong it. i did have some questions that the one to follow upon. they will be certainly a part of the record. we will make a decision on

whether we can reconvene. i think you. >> shall i continue? yes. so, the war powers resolution does not supply a useful vehicle for facilitating and inter- branch cooperation. the president and congress should leave aside their differences and work toward a mutually acceptable terms for participation in the libyan operation. the war powers resolution has had little effect on war powers practice. the operative core of the resolution is the 60-day termination provision. the most notable episode implicating the 60-day clock was present in clinton's administration in kosovo. participation in that operation continued more than 60 days after its initiation notwithstanding the lack of specific authorization.

the clinton administration asserted that funding for the opposition satisfied the requirements of the war powers resolution. this was a questionable argument on its own terms, but congress and other actors accepted the continuation of the bombing past the 60-day window. in the absence of specific appropriations for the libya operation, president obama lapsed that argument. instead, participation does not rise to the level of " hostilities for purposes of the act and the section 5b trigger." i have three observations in response to this question. first, plain language approaches to meanings seemed particularly inappropriate in the context of war powers. as with parallel constitutional understandings, statutory measures relating to national

security and military force are likely to be interpreted in light of practice and historical precedents. as much as through language. second, practice relating to the war powers act renders the administration's interpretation spossibles one-- a plausible on. there is evidence supporting a narrower interpretation of hostilities that might be expected from an everyday understanding of the term. third, that is not to say that the administration's position is necessarily the better one. members of this committee and the senate do not have to accept that position. in the contraposition is also reasonable. there is insufficient practice and other evidence to resolve the question either way as applied to get libya operation. congress could make clear

through a formal constitutional pronouncements that it rejects the administration's interpretation of hostilities. but, finally, it is not clear how pressing the hostilities question serves the institutional self interest of the legislative branch. on the one hand, i believe any president faced with the winding down of the 60-day clock would identify justification for avoiding the terms of section 5b. no responsible chief executive would terminate the military operation deemed in the national interest in the face of congressional inaction. if not authorization gleaned from a funding measure, it's not an argument related from the definition of hostility, then some other avenue would present itself to evade the termination provision. section five b is unlikely ever to be given effect, nor with the judiciary ever in force it.

does this mean that the section is unconstitutional? that may be a question better left to the court of history. presidents have good cause to avoid constitutional showdowns where more minimalist arguments will serve the same ends. it is my understanding the administration has not affirmed the constitutionality of the resolution. it is been quite careful to the fact not to concede the question. on the other hand, congress has no real need of the section 5b provision or the rest of the war powers act for that matter. congress has ample tools to control deployments of u.s. armed forces. in any event, devising a position in respect to the operation in libya should be the primary task at hand. dispute related to the war powers act resolution are likely to distract from that

undertaking. congress would be better served by focusing on other institutional tools for participating in the full spectrum of military deployment and use of force decisions. thank you, mr. ranking member. >> i think both of you for very important testimony, both your written testimony as well as these oral presentations these morning. at this point, i will recess this hearing and the chairmen will make a determination of whether it is to be recessed permanently. he will be back fairly shortly having voted during this time. i appreciate so much hearing both of you. we will study carefully your papers. at this point, the hearing is recessed pending the call of the chairman. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]

>> some initial debate today and the senate foreign relations committee on the resolution drafted by senators john kerry and john mccain which would authorize limited u.s. military involvement in the nato libya operation but without ground

troops. the two witnesses you just saw may come back. the committee has recessed because of a series of votes on the senate floor, so we are not sure if they are going to come back and testify further to the senate, but we will have live coverage if they do. the senate foreign relations committee is coming back this afternoon at 2:30. during that time, they will mark up the legislation, so we will have live coverage of that session beginning at 2:30 eastern here on c-span. >> of the house recently debated and voted on two measures related to u.s. involvement in libya. look for continued debate at c- span's congressional chronicle. find video of every session, daily schedules, committee hearings, and information on your elected officials.

>> you are watching c-span, bringing you politics and public affairs. every morning, it is "washington journal." weekdays, watch live coverage of the u.s. house, and weeknight, congressional hearings and forums. also, supreme court oral arguments. on the weekend, you can see our signature interview programs. you can also watch our programming and the time at c- span.org, and it is all searchable. c-span -- washington, your way. >> president obama is in on what this afternoon talking about manufacturing jobs. his transportation secretary was with us on this morning's

"washington journal" to talk about the auto industry and transportation jobs. host: transportation secretary ray lahood is our guest. guest: good morning. host: you are heading out on the road. heading to essentially the rust belt -- michigan and ohio area -- to tout the administration's role in the auto industry and manufacturing jobs that have been created. what is your message? guest: that in this administration has paid more attention to the auto industry -- auto industry than any i can remember in my time in public service for 35 years. president obama early on may commitment to the automobile industry to make sure that the industry can continue to manufacture american made automobiles and as a result gm, chrysler, and for all posted profits this year. which was not the case two years ago. it two years ago gm and chrysler were looking at a very dim prospects for manufacturing cars. and i can't think of another president who has really taken

an interest in the automobile industry. it has proven to be very successful. taxpayer money in this case was well spent and it has been paid back, and the ottoman -- although industry are all posting -- automobile industry are all posting profits. chrysler and gm were probably hurting the most. ford, obviously, as most people know, did not accept any money, but we are pleased with the progress the car industry is making. it is the backbone of our economy. certainly the backbone of the economy in many states now, including michigan and ohio and other states. i think people are grateful for the president for his leadership and really helping the american automobile manufacturers and the workers who work in those companies. it a coat is it ultimately a good deal for the text -- host: was it ultimately a good deal for the taxpayers? they will not get the $1.3

billion. guest: it certainly was. if you look at what the automobile industry has contributed, particularly gm, chrysler, and ford -- it is enormous. not just jobs in that industry but the spin-off jobs. it the -- the people who manufacture tires and accessories. to have any one of the companies to go under would have been a disaster for the american manufacturer. it was a good deal for the taxpayers because it helped in the automobile industry, the economy particularly in michigan and ohio and states where they manufacture cars, and the lion's share of the money has been paid back. and these companies are posting profits. so, i think good leadership on the part of the president. a good expends of taxpayer money. thirdly, good leadership on the part of the automobile manufacturer, particularly gm and chrysler. host: "wall street journal"

opinion piece, it is called "the real cost of the auto bailout." the indirect costs may be the worst problem. it's a politically interested -- if a politically important industry has a problem. also concerned about the fact that not all of the money is actually being recouped. he is a law professor at the university of pennsylvania. do you think it sets a bad precedent? guest: i think people who live in states like michigan and ohio and have made a good living in the automobile industry, whether it is actually working for chrysler corp. gm, or whether it is people who work in the spinoff companies, the thousands of small businesses that provide the accessories to cars, these jobs were saved by president obama and this administration. and for these people, this was a lifeline that was needed in order to give them the kind of

credit and the kind of resources that they needed to do what they have done, which is to re- manufacture cars, reengineer cars and bring their automobiles and to the 21st century to compete with foreign automakers. they are now manufacturing cars americans want to buy. that is why they are doing well. this -- this lifeline the president gave to them has proven to be very successful. host: secretary ray lahood is our guest. here are the numbers to call -- we all they have people lining up to talk with you. a republican from the illinois. good morning. caller: mr. lahood, i've got some questions to ask you. i retired after 30 years, most on salary, -- reduction in

salary, flint, michigan. i lost most of my benefits but obama gave the union -- from what i hear, and i want you to cleared up for me. he gave the union 18% of the company. and the government took the rest. my friends who retired from there, they lost hartley everything and i lost almost everything. i lost most of my life insurance, i lost most of my prescription glasses, my dental, medical. at me and my wife, they gave us $300 to buy -- for me and my wife, they gave us $300 to buy

prescription insurance with. the first year it worked out ok. i could buy all two of them for $300. now, my supplement costs $350 a month and i have to pay for my prescription insurance. host: what is your overall message for the secretary? caller: my overall message is why did they cheat the salaried retirees -- and obama is such a union lover that he gave the union 18% of the company so they would not have to do that with their benefits but they sure cheated the guys who worked their butts off trying to make general motors profitable. guest: well, the money actually went to the companies. i know the companies did renegotiate contracts with the

uaw, which is the largest union that represents of co-workers. and in those negotiations i know that there were some concessions made. but the lion's share of the money that was provided by the federal government went to the companies to help them really stay afloat while they redesign and re-manufacture cars and really begin to build cars in the american people wanted, including a lot of electrified vehicles. and so, this proved to be very successful. but obviously the negotiations between the company and the uaw, i think, did not benefit this gentleman but had to be done in order to get costs under control by the company. host: secretary ray lahood is traveling to flint and bay city, michigan, this week and he will

visit the caterpillar plant outside of the income ohio. larry, democrats' line. caller: good morning. guest: good morning. caller: i got to say that i was really on edge when all of this negotiation was going on with the auto industry in congress and all i could see was the republicans and downs out fighting the obama administration about this money going to the auto industry because they were heavily invested in the auto industry down south, and the northern auto industry would have collapsed, they would have had it all in their laps. the last caller made a statement he was not a union member. that is too bad because union members were protected because we had somebody to negotiate for us. but we did lose our dental and eye care coverage under this renegotiation of the auto

companies. it was not all rosy. we do have the health care benefits. but i have to say my hat goes off to the obama administration for negotiating the deal that they did for the auto industry. how much money did the auto industry pay back as far as credits to the country when they got that money, when it started paying the money back? how much percentages did the united states make on this deal? guest: lions share of the money has been paid back to the federal government. chrysler just made its final payments, and i would say the majority of the money has been a paid back. it obviously has been a good investment to secure the american automobile manufacturers, to secure many,

many good jobs in state where american companies are building automobiles, it was a lifeline that proved to be very successful and i think president obama deserves the lion's share of the credit. he made a very tough call but it was of the right call and a call that saved an industry that had been the backbone of the american economy. host: you announced last week you for stopping the international scan program. it talks about trips all over the world, looking at things like concrete, managing pavement, motorcycle safety. why did you stop that and what was it all about?

guest: i just learned about the program when we were called by abc news. i was not really aware of it. i was not aware people were travelling to do research in these areas. the reason i suspended the program was to suspended the program was to personally review how much was spent on research and what benefits is really accrued to the department of transportation as a result of it. once i get to the bottom of it, i will decide if the program is worth the taxpayer dollars. it does not appear, from what i have learned so far, from what our friends in the media -- we are really strapped for dollars in the government. this is the kind of program that we perhaps should not be promoting. i will look at it and then make a decision. host: abc reported a recent trip

host: abc reported a recent trip cost -- how is it that the secretary does not know about a program like this? guest: what i have tried to do is focus on safety in transportation and focus on the big picture, pope is on our larger goals. i am not going to take a back seat to anybody when i do not see the day when i see something that is not right. when i see taxpayer dollars, particularly when we do not have many taxpayer dollars, being spent in correctly, i will take action. this program has been suspended and is under review by me, personally.

and it will not be started by me again until i am convinced taxpayer dollars are being well spent. we owe it to the taxpayers at a time when it is tough to get dollars to spend on particularly safety programs and other things important to the american people. host: cannot talk about your prayer area of safety. there have been a couple of deadly bus crashes. recently, a tour bus crashed killing dozens of passengers. what is your level of concern related to these deaths? half a dozen senators have written to you, saying the agency has had a hard time enforcing safety laws. guest: we have had some harsh repression in the last couple of months. i am deeply concerned about our ability to continue to regulate bus companies.

there are a lot of bus companies. a couple of these companies, we took out of service, but they repainted their buses and went back into service. in some instances, we have to rely on our friends in the state to help us with licensing and enforcement. we give money to state police and other law enforcement people, so that when they stopped buses, they can check to see that the driver is well- licensed, that the company is properly licensed, that the vehicle is safe. we pay people to do the inspections. i am not going to make excuses, we have a responsibility for licensing buses and drivers. and some of that is shared with the states. we have to do better. any bus crash is a series bush press. -- serious bus crash.

we are going to work with our partners in the state's and the bus companies. the last thing that budget and the bus companies want are these companies that are not legitimate, proper drivers driving their vehicles. we have to step up our enforcement. host: what did you recommend to travelers? guest: it is a great question. on our website, we list companies that are well- licensed. they can see the records of these companies and they can see what we have developed as a safety criteria and they can get a pretty good handle. i recommend people do that before they board a bus. host: jim, republican caller. good morning. caller: i would like to make a few short comments and then a

question. picking winners and losers is a moral hazard. i do not know whether the president makes these decisions based on whether he served as a larger number of people. certainly, the moratorium on oil drilling probably hurt more people than would have been hurt, and if the auto companies had not been bailed out. secretary, if you could personally choose a project that would involve giving people jobs that would help, not just a region -- what would it be? guest: that is a great question and answer is easy. i have been pushing congress to

pass a transportation bill. a six-year transportation bill for our country would put people to work in very large numbers building roads and bridges, fixing roads and bridges, continuing our progress with transit programs around the country, enabling people who are in the business of building buses, train cars for transit systems, to go to work. we have now -- past for more than two years the last transportation bill. when congress passes a transportation bill, they pass a jobs bill. we saw the money we received from the stimulus bill. 15,000 projects and 65,000 jobs in two years. that money is running out and we do not see people working on the highways as much as we did because stimulus is running out.

as a transportation bill. that will put americans to work. host: val writes on twitter -- guest: i think it is and i think the people have decided that. if he lived in washington, d.c., where we have a great metro system, people poured those trains every day. around the country, people are importing transit systems. particularly, as gas prices have gone up. we have made big investments in public transportation and we will continue to that. this is what people want. they want to be able to get at a transit -- ingestion, travel on transportation that they can afford. that is what public transportation is so critical all over america. the same is true for trains. that is why the president has a

bigger vision for implementing more passenger rail in america. we have made $10 billion is worth of investments so far to get people on trains, the way that we have the opportunity in the northeast corridor, from washington to new york. people like the ability to get on buses, metro system's, light rail, because it is affordable and it is comfortable and they get to where they are going on time. host: a story and "the times" today."

guest: this project meets all the guidelines that have been established by our department and by congress. we believe this is a good project. we have never been mulling by any member of congress to do anything. we do things by the book. he think it is a worthwhile expenditure of taxpayer dollars -- we think it is a worthwhile expenditure of taxpayer dollars. guest: tom, democratic caller. caller: i just want to start off by stating, we have to remember, when the stimulus bill was passed, not one republican voted for it, and that saved 3 million jobs. then when we passed the auto bailout, not one republican voted for that, and that saved 1

million jobs, from auto suppliers to automakers. i always laugh when these republicans say we want to create jobs. the new congress has not done anything. if it was up to the republicans in congress -- and you can look at it from the state to the congressional level -- if you are a union worker, forget it. they do not even consider you a worker. they blame all the problems on union workers. and that tells you where the republicans stand in this country. guest: i am a republican, am proud to say i am a republican. i promoted the transportation and stimulus bill. i know it provided jobs. i am proud of what we have done

over the past two and half years to put americans to work, through the stimulus money. we are going to push hard for congress to pass a transportation bill. it is a very bipartisan way to put americans to work. transportation has always been bipartisan. when i served on the transportation committee, we passed two bills with over 380 votes, and a lot of people have gone to work as a result of it. i have no doubt that if congress can pass a transportation bill, it will be a jobs bill. host: you first started in the house in 1994. you served on committees such as appropriations, agriculture subcommittee, as well as the

illinois house back in the 1980's. i wanted to ask you about a story over the weekend. europe is looking to get more people on mass transit. reporting from zurich, elisabeth rosenthal writes -- what did you make of that strategy? guest: i think it is a good strategy, but the strategy comes from the people. people want options in transportation. people are tired of a cog roads, congestion. people are tired of high gasoline prices. you can live in washington, d.c., new york, and not on an

automobile because there are good transportation systems. the metro system in washington is very good. cta, in the chicago, is a good system. -- in chicago, is a good system. people want to be able to get from one place to another and from one place to another and not always have to do it paying high gas prices and in congestion. i believe this idea of more transit, more buses, metro, streetcars, rarely comes from the bottom up. it is coming from the people. host: new haven, conn. john is on the republican line. caller: good morning. some of the facts about

transportation, public and private sector. you stated that new york has an awesome transportation system, but actually, they are trying to upgrade it, trying to make new policies and implement new things. you do not talk about relocating when these big projects are taking place. people are not building on highways. i see men i was all the time. differences between the union and non-union members. you have no support for a non- union person, someone who is union person, someone who is trying to make it, versus a someone in a union tried to get their help. guest: i agree, when you do big

projects, there are disruptions. big projects cause controversy, there is no question about that. we know that sometimes they are controversial. we take our cues from people in the state who have been good partners with us, from our friends in the cities that are running transit district's. we consider them good partners. when they want to do big things, we tried to be helpful with resources and expertise, but i do not question the idea that big things can be controversial. big projects are controversial. host: jason is next on jacksonville, florida. caller: mr. lahood, you are one of our best transportation secretary that we have had in a while. i am from upstate new york. i move down here to florida.

saving the auto industry was the greatest thing you could have done. people do not realize. what about local towns, the local delis, restaurants, local bars? had our auto industry gone down, we would have lost more than a couple million jobs. with the environment we are in today, do you think you could be elected as a republican? i saw what they did to huntsman, that man from iowa. we need a transportation bill, but i do not think we are going to get it because we are so divided. guest: i have no intention of running for office again. it was a great privilege to serve in the house of representatives.

serving in the house is a really great job. we made the most of it, did a lot of great things for our district, but i think we also looked up for the country. i consider elected office a special privilege and i appreciate the support i got from my district. i have a great job right now and i do not intend to run for public office again, but it was a good run. host: among the secretary's background, he was a junior high school teacher. our caller is talking about politics in general. as a republican serving in a democratic administration, do you see willingness for folks to cross the line? cross the line? guest: of course. that is how we solve our problems in this country. no one of the members of the house or senate get their way.

when the president reached agreement the congress, and ultimately, we were able to pass a 2011 budget, it was done because republicans and democrats came together and put their heads together and figure out solutions to these budget problems. that will happen again. that is why the president called the leaders of congress to the white house yesterday to keep talks going. these problems that we have, whether they be transportation, fiscal, deficits, debt, will only be solved in a bipartisan way. no one party has the total answer. bipartisanship will prevail here because it is the way we solve our problems in this country. host: jeff from lansing, ill.. caller: mr. lahood, you

mentioned earlier, the electric vehicles being developed. the only one i see being developed is the volt. why is it that no other vehicles are mentioned? host host: would you drive an electric vehicle? caller: yes, i would. they are environmentally friendly. for short trips around town, it would be great. guest: let me say, nissan is

developing an all-battery car. developing an all-battery car. it is called the leaf . it will be available in the united states very soon. ford has a hybrid vehicle, which i alone, and the escape. it is a combination of battery and combustion. -- which i own, the escape. car makers are starting to create more battery vehicles. the volt is a very best selling car, produced by gm. you can get a 7 $500 tax rebate if you buy a volt. that is a pretty good incentive. -- $7500 tax rebate if you buy a

vote. lt. host: that is in a usa today gallup poll. why the resistance? guest: we are in the starting its about this. i own a hybrid. it is a magnificent vehicle. it gets good gas mileage. it is very environmentally appealing. it has good pickup, you can drive it on the highway. i think there are just probably misunderstandings about battery powered vehicles. but as one who drives one, i think it is a good vehicle.

host: union, missouri. gregg, republican call. caller: mr. lahood, let me ask you about amtrak and the government running that, and they are losing money. also, you are thinking about more rail systems and the government running it? we are in debt up to our eyes. guest: no question, and the president has called legislative leaders to continue the conversation about how we reduce the debt and deficit. but you can have debt and deficit and you can also have priorities. we are going to continue to have priorities. amtrak made money last year. ridership was way up. people are using amtrak, particularly in the northeast corridor.

amtrak is doing well because they are providing a service at a cost that people can afford, and they're trained to arrive on time. that is why amtrak is doing better. the reason we are promoting passenger rail is because the president has a vision for alternative forms of transportation. we have never had a president that has invested this amount of money to get people onto trains. high-speed intercity rail is coming to america because this is what the people want. finally, we have a president with the vision to implement it. host: you have talked about web- based gadgets in cars.

what is the rights of individuals and companies? guest: when we say something that dot, we -- at dot, we base it on good data. right now, we are looking at new technology in cars. whether it be a new radio, sync, gps, other gadgets in cars. when that study is complete, we will have a better idea whether these cognitive distractions are, in fact, distractions. i think distracted trapping is an epidemic. you see people on their cell phones all over the community. you cannot drive safely if you have a cell phone in your ear and you are trying to drive a 4000-pound vehicle. i am trying to get people to

put their cell phones in the glove compartment. distracted driving is an epidemic because we all think we can use our cell phones behind the wheel of a car. you cannot drive safely if you have a cell phone by your year or if you are text messaging. or if you are text messaging. all i would say is, go to distraction.gov. you will see heartbreaking stories. you do not need to listen to ray lahood. listen to the stories that people tell about losing loved ones because someone was foolish enough to think that someone could drive with a cell phone in their ear, or drive while texting. host: a comment on twitter.

the white house last week said they were not speculating on what opening the reserves would mean at the pump. to you think it will help drivers? guest: we are involved in these decisions and we support the president's decision, a decision to use some of the strategic oil reserves. the president made a judgment here during the summer season, a lot of people like to travel by car. they should not be inhibited by high gas prices. gas prices are coming down. we and the president believe that using the strategic oil reserve will be helpful to families who want to travel around, and what to do it on gasoline prices that are lower than they have been. host: