exceeded their authority before is of little comfort. the dubious arguments offered by the obama administration for not meeting approval break new ground in justifying a presidential decision to use force. the approval of more authority in the hands of the executive is not in our country's best interests. especially at a time when our nation is in debt and our military is committed overseas. at the outset, the president asserted that military operations would be, "ltd. in their nature, duration, and scope." the administration asserted it would not require an act of war. three months later, these assertions ran hollow. military operations expanded to

a campaign to drive moammar khaddafi from power. the administration is unable to justify the duration of the operations. it has grown from efforts to protect civilians under imminent threat to obliterating libya possible military arsenal, command-and-control structure, and leadership apparatus. most recently, the a demonstration has sought to avoid its obligation under the war powers resolution been making the incredible assertion that u.s. military operations in libya did not constitute hostilities. even some prominent supporters of the war have refused to accept this claim. the administration pause a description of the operation in libya underscores the fallacy of this position. u.s. warplanes have reportedly struck libya air defenses some 60 times since nato assumed the lead role in the liberal campaign. predator drones reportedly have

fired missiles on 30 occasions. most significantly, the broader range of air strikes being carried out by other nato forces depend "essential support functions provided by the united states. the war powers resolution requires the president to terminate the introduction of u.s. forces into hostilities in libya on may 20, 60 days after he notified congress of the commencement of the operation. the administration declined to offer any explanation as to its view that u.s. forces were not engaged in hostilities in libya until nearly one month later on june 15. even at that point, the administration + expedition was limited to four perfunctory extent -- sentences in a 32-page report. they focus on the question of whether the u.s. casualties are likely to occur.

if this definition of hostilities were accepted, president would have significant scope to conduct warfare in remote means such as missiles and neutrons and would deny congress a say in decisions to go to war. including the impact on strategic interest on our relations with other countries and their ability to meet competing national security priorities. the administration's report also implies 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 the u.s. contributions to the nato operation in libya. we are contributing 70% of the polish bus intelligence capabilities and a majority of its refilling assets. the fact that we're living most of the shooting to other countries does not mean the

united states is not involved in acts of war. the united states encountered persons conducting similar 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 kind of operations u.s. military forces are performing in support of other nato countries. these concerns are compounded by indications that the administration's legal position was the result of a disputed decision process. according to press reports, the president made the decision to adopt this position without the department just as having the opportunity to develop a unified legal opinion. it is regrettable that the administration has refused our request to make witnesses from the department of defense and justice available for today's hearing. one would expect the

administration to be fully forthcoming on consultations about libya to compensate in some measure for the lack of congressional authorization to the war. consultations in no way substitute for formal authorization, they serve a vital purpose in unifying the government and providing congress with a basis for decision-making on the war. for the most part, the clinton administration and president clinton himself consulted meaningfully with congress during the united states intervention in the balkans. in sharp contrast, the obama administration's efforts to consult congress have been perfunctory, incomplete, and dismiss it. this committee alone has experienced at least three occasions when briefings were canceled or relevant witnesses were denied without explanation.

the basic questions about the operation have gone unanswered. deputy secretary of state steinberg declined to answer certain questions. the administration has provided -- refused to provide the committee with defense department witnesses. this behavior contrary to the damage that the libyan president mike ray in the future. -- that the libyan president might raise in the future. the fact that american pilots are flying the majority of the missions justify the contention we're not engaged in hostilities especially since the united states 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 local and reasonable violence to which the united states military could be applied for some help with the purpose. under the constitution, the congress is vested with the authority to determine which if any of these circumstances justified the consequences of american military intervention. i thank the chairman for the opportunity to make this statement. >> thank you very much. there you have it, sir. the stage is set, two differing views reflecting over 50 years of service on this committee. we are still not sure what the answer is. your task this morning is interesting and i think we will

not only have a good dialogue but maybe it will be fun. >> thank you, mr. chairman. it is good to be back before you. i'm honored to appear to explain the administration's legal position on the war powers. i have submitted detailed testimony before a which reviews the brutality visited by moammar khaddafi on the people of libya and urgent but evarts this administration has taken to stop it in a supporting role in nato- led civilian protection mission that is limited with respect to design, exposure of u.s. troops, risk of escalation, and choice of military means. this administration is acting lawfully, consistent with the letter and spirit of the constitution and the war powers

resolution. we are 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 to violate the war powers authority and has not claimed the right to violate international law or use force abroad when doing so would not serve important national interests or refuse to consult with congress unimportant or powers issues. we recognize that congress has powers to regulate the uses of force and the war powers resolution plays an important role in promoting inter branch dialogue. my testimony today continues that dialogue which includes more than 10 hearings, 33 briefings, and dozens of exchanges with congress on these issues. 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

as everyone recognizes, the legal trigger for the automatic pull out clock, hostilities is in in big u.s. term that is to find nowhere in the statute. legislative history makes clear there was no agreed upon view of exactly what the term hostilities would encompass more as the standard ever been defined by any court or congress itself. from the start, legislators disagreed about the meaning of the term and the scope of the 60-day poll out rule and whether into -- a particular set of facts represents a still is for the purpose of the resolution. it has been returned --

determined less by the dictionary definition and then buy into a branch practice. as my testimony recounts and senator kerry has noted, there are various leaders of this congress who have indicated they do not believe that the u.s. military operations in libya amount to the kind of hostilities envisioned by the 60-day poll of provision. we believe that view is correct and confirmed by historical practice and the historical practice which i summarize in my testimony suggests that when u.s. forces engage in limited

military mission that involves limited exposure for u.s. troops and a limited risk of serious escalation and employs limited military means, we are not involved in hostilities envisioned by the war powers resolution that was intended to trigger an automatic 60-they pulled out. let me say a word about each of these four limitations. first, the nature of the mission is unusually limited. but presidential design, u.s. forces are playing a constraint and supporting role in nato-led multinational civilian protection mission. this circumstance is virtually unique and not found in any of the recent historic situations in which the hostility question has been debated from the iranian hostage crisis to el salvador to lebanon, to fighting with iran in the persian gulf or the use of ground troops in somalia. 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 u.s. casualties, no active exchange in fire with hostile forces, no significant armed confrontation or sustain confrontation of any kind with hostile forces. as my testimony describes on page nine, past administrations have not found the 60-day rule to apply even in situations where far more significant fighting plainly did occur such as in lebanon and grenada in 1983 and somalia in 1993. third, the risk of escalation here is limited. in contrast to the un- authorized desert storm operation which presented over 400,000 troops, the same order of magnitude as vietnam at its peak, libya has not involved in a significant chance of escalation into a full-fledged conflict characterized by a large u.s. ground presence, major casualties, sustained act

of combat or expanded geographic scope. libya contrasts with other recent cases like lebanon, central america, somalia discussed on page 10 of my testimony. that the administration's declined to find us tildes under the war powers resolution even though u.s. armed forces were repeatedly engaged by other forces and sustained significant casualties. fourth, we're using limited military means, not the kind of full military engagement with which the war powers resolution is primarily concerned. the legal adviser of 1975 in response to a request from congress about an incident during the ford administration. the violent u.s. armed forces are conflicting or 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 1999 or the nato operations in 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. contribution has been providing intelligence capabilities and refueling assets to the nato effort, a significant majority of the sorties are being flown by coalition partners, 70%. 90% are being flown by air 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 limited strikes by a predator unmanned aerial vehicles against discrete targets to support the civilian protection mission.

by our best estimate, 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. had any of these elements been absent in libya or present in different degrees, you could draw a different legal conclusion. it was this unusual confluence of these four limitations that led the president to conclude that the libyan operation did not fall under the automatic 60- staple of rule. as chairman kerry suggested, we are far from the court case that most members of congress had in mind when they passed the resolution in 1973. they were concerned about no more of vietnams but given

limited military means and exchanges of fire in u.s. casualties, we do not believe that the 1973 congress intended that its resolution should be construed so rigidly as to stop the present from directing supporting action in a nato-led security council authorized operation with international approval as -- at the express request of nato, the arab league, the gulf cooperation council, and libya's on transitional council for them narrow and version purpose of preventing the slaughter of innocent civilians in libya. we fully recognize reasonable minds may read the resolution differently. that would not be a surprise. scholars have spent their entire careers debating these issues. these questions of interpretation are matters of important public debate. , reasonable minds can certainly differ. we acknowledge there were power -- there were steps we could have taken to foster better communication on these very

difficult questions. none of us believes that the best way forward now is for moammar khaddafi to prevail and resume his attack on his own people. with the united states to drop out of this collective mission or to sharply curtail its contributions would not only compromised our international relationships and destabilize the region but would undo the nato progress but permitting gaddafi to return rolodex to the civilians on whom are intervention has protected. we may consay that it would only serve the gaddafi interest to withdraw from this nato operation before it is finished. the urgent question before you is not one of law, but of policy. will congress applied its support at this pivotal juncture ensuring that gaddafi does not regain the upper hand against the people of libya? in closing, i ask that you take

quick and decisive action to approve senate joint to20, the bipartisan resolution, to provide congressional authorization for continued operations and libya to enforce the purposes of security council resolution 1973. only in so doing, can this body confirmed that the united states is united in support of the nato alliance and the aspirations of the libyan people. thank you and i look forward to answering your questions. >> thank you very much. we appreciate the testimony. 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 h

>> he bought a pistol and the fall of mckinley's activities in the newspaper. he began tracking him throughout. >> on september 6, 1901, self- proclaimed anarchist fired two fatal shots at president william mckinley. tonight, scott miller looks at the president and his assassin and the changing era in which they lived on "q &a. " >> this morning a discussion on the latest developments in congress including the debt ceiling debate and tax and fiscal policy. assistant georgetown university assistant georgetown university professor talks