[House Report 112-76]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-76
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DIRECTING THE SECRETARY OF STATE TO TRANSMIT TO THE HOUSE OF
REPRESENTATIVES COPIES OF ANY DOCUMENT, RECORD, MEMO, CORRESPONDENCE,
OR OTHER COMMUNICATION OF THE DEPARTMENT OF STATE, OR ANY PORTION OF
SUCH COMMUNICATION, THAT REFERS OR RELATES TO ANY CONSULTATION WITH
CONGRESS REGARDING OPERATION ODYSSEY DAWN OR MILITARY ACTIONS IN OR
AGAINST LIBYA
_______
May 12, 2011.--Referred to the House Calendar and ordered to be printed
_______
Ms. Ros-Lehtinen, from the Committee on Foreign Affairs, submitted the
following
R E P O R T
[To accompany H. Res. 209]
The Committee on Foreign Affairs, to whom was referred the
resolution (H. Res. 209) directing the Secretary of State to
transmit to the House of Representatives copies of any
document, record, memo, correspondence, or other communication
of the Department of State, or any portion of such
communication, that refers or relates to any consultation with
Congress regarding Operation Odyssey Dawn or military actions
in or against Libya, having considered the same, report
favorably thereon with amendments and recommend that the
resolution as amended be agreed to.
TABLE OF CONTENTS
Page
The Amendments................................................... 1
Purpose and Background........................................... 2
Oversight and Hearings........................................... 5
Committee Consideration.......................................... 6
New Budget Authority............................................. 6
Congressional Budget Office Cost Estimate........................ 7
Performance Goals and Objectives................................. 7
Changes in Existing Law.......................................... 7
The Amendments
The amendments are as follows:
Strike all after the resolving clause and insert the
following:
That the House of Representatives directs the Secretary of State to
transmit to the House of Representatives, not later than 14 days after
the date of the adoption of this resolution, copies of any official
document, record, memo, correspondence, or other communication of the
Department of State in the possession of the Secretary of State that
was created on or after February 15, 2011, and refers or relates to any
of the following:
(1) Consultation or communication with Congress regarding the
employment or deployment of the United States Armed Forces for
Operation Odyssey Dawn or NATO Operation Unified Protector.
(2) The War Powers Resolution and Operation Odyssey Dawn or
Operation Unified Protector.
Amend the title so as to read:
Resolution directing the Secretary of State to transmit to
the House of Representatives copies of any official document,
record, memo, correspondence, or other communication of the
Department of State in the possession of the Secretary of State
that refers or relates to any consultation with Congress
regarding Operation Odyssey Dawn or NATO Operation Unified
Protector.
Purpose and Background
On March 21, 2011, the President reported to Congress
``consistent with the War Powers Resolution,'' that on March
19, 2011, he had directed U.S. military forces to commence
``operations to assist an international effort authorized by
the United Nations Security Council and undertaken with the
support of European allies and Arab partners, to prevent a
humanitarian catastrophe and address the threat posed to
international peace and security by the crisis in Libya.''\1\
He described ``a series of strikes against air defense systems
and military airfields for the purposes of preparing a no-fly
zone.'' The strikes, to be ``limited in their nature, duration,
and scope,'' were intended ``to support an international
coalition as it takes all necessary measures to enforce the
terms of U.N. Security Council Resolution 1973.''\2\ In his
March 28, 2011 address to the nation, the President asserted
that the United States has ``an important strategic interest in
preventing Qaddafi from overrunning those who oppose him,'' and
also noting the potential impact of refugee flows on
neighboring Egypt and Tunisia.
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\1\March 21, 2011 letter from the President to the Speaker of the
House of Representatives. Available online at: http://
www.whitehouse.gov/the-press-office/2011/03/21/letter-president-
regarding-commencement-operations-libya.
\2\Id.
---------------------------------------------------------------------------
House Resolution 209 directs the Secretary of State to
transmit to the House of Representatives copies of all State
Department documents or records (including telephone records,
electronic and email communications, and records of internal
discussions) related to the intervention of United States
forces in Libya that began on March 19, 2011 that deal with the
Department's consultations with Congress or its discussions of
the War Powers Resolution of 1973.
According to the rules and precedents of the House, House
Resolution 209 is a resolution of inquiry, which is one of a
number of means by which the House may seek information from
the Executive Branch. According to Deschler's Precedents,
resolutions of inquiry are ``usually simple resolutions used to
obtain information from the executive branch . . . [that] are
given privileged status in the House, provided they seek
information of a factual nature, rather than request opinions
or require an investigation on the subject.''\3\ Their efficacy
relies on the comity extended by one branch of government to
another, and not from any enforceable legal obligation. The
passage of a resolution of inquiry does not override any legal
or constitutional privilege that may be afforded to the
documents it seeks.
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\3\Deschler's Precedents, H. Doc. 94-661, 94th Cong., 2d Sess.,
vol. 4, ch. 15, section 2.
---------------------------------------------------------------------------
Pursuant to rule XIII, clause 7 of the Rules of the House
of Representatives, the Committee must report a resolution of
inquiry to the House within 14 legislative days after its
introduction (exclusive of the days of introduction and
discharge), or a privileged motion to discharge the Committee
is in order. House Resolution 209 was introduced on April 7,
2011.
In light of the already robust oversight by the Committee
on Foreign Affairs of developments in Libya and U.S.-Libya
policy, before and after the recent U.S. intervention in Libya,
it is unclear that the documentation sought by the resolution
would add to Congressional understanding of these issues.
In addition, the extensive scope of the introduced text of
the resolution (which purports to reach all ``communication,
including telephone records, electronic communications, email,
logs and calendars, and the records of internal discussions'')
is open to question. Questions of privilege aside, given the
resolution's basis in comity, it is difficult to imagine that
Congress would be comfortable with reciprocal disclosure
expectations of such intrusive specificity. Thus, the
Committee-adopted amendment relates to ``copies of any official
document, record, memo, correspondence, or other communication
of the Department of State.''
There are diverse views among Members about the wisdom and
legality of Operation Odyssey Dawn and the use of U.S. military
force inside Libya. But whatever one thinks about the propriety
of the initiation of those actions, the most salient facts in
terms of constitutional or War Powers analysis are what the
Administration in fact does (in terms of consultation,
deployment, reporting, etc.). The full range of those legal
issues, along with policy questions about U.S. end-state and
objectives in Libya, have been--and will continue to be--a
subject of inquiry and oversight by the Committee on Foreign
Affairs, as described below.
Since the commencement of military action, U.S. and then
NATO-led air strikes in Libya have largely enforced a no-fly
zone and arms embargo against the Qaddafi regime, but have not
definitively changed the balance of power between Qaddafi's
loyalist forces and opposition fighters.
As of May 11, 2011, the NATO air mission has conducted
nearly 6,100 sorties, including over 1,900 strike sorties,
since assuming control of the operation on March 23rd. The NATO
maritime component has conducted more than 750 hailings in the
embargo area, boarded 26 ships, and turned away 5 ships.
France and the United Kingdom have called for expanded
military operations against pro-Qaddafi forces in the face of
continued faltering by anti-Qaddafi elements. Others, including
Germany, question the logic of and authority for expanded
military operations, favoring greater emphasis on humanitarian
support and the enforcement of sanctions and the arms embargo.
The African Union continues to press for a peace deal that was
accepted by Qaddafi but rejected by the opposition because it
would leave Qaddafi in power. Some Libyan opposition members
have indicated they will not support the participation of any
former government official in any future transitional political
arrangement. Turkey also has offered a proposal with three
elements: establishing an immediate and verifiable ceasefire;
securing humanitarian aid corridors; and advancing a political
process for a transition. Turkey has not provided a detailed
implementation strategy but has made it clear that Qaddafi must
leave Tripoli.
On May 5, 2011, and hosted by Italy and Qatar, the second
meeting of the Libya Contact Group was held in Rome. Twenty-two
countries participated, as well as representatives from the
United Nations, European Union, NATO, Arab League, Organization
of the Islamic Conference, Gulf Cooperation Council, African
Union, and the World Bank. Qatar took the opportunity to
formally propose arming the rebels. While no agreement was
reached on arms, members agreed to create a Temporary Financial
Mechanism (TFM) through which humanitarian and other financial
assistance would flow to rebel-controlled areas. The TFM will
be administered by a steering committee composed of three
Libyans chosen by the Transitional National Council (TNC), a
representative of Qatar, and a representative from Italy or
France on a six-month rotating basis. The TNC had been seeking
$3 billion and warned that they were running ``perilously''
short of money to buy food, medicine, and gasoline, and to pay
government salaries in the areas they control.
The United States authorized a drawdown of up to $25
million in existing Department of Defense stocks to assist the
TNC, including assorted medical first aid kits, stretchers,
bandages and dressings, surgical tape, blankets, ready to eat
meals, tents, sleeping bags, canteens, uniforms, boots,
tactical load-bearing vests, helmets, maps, binoculars, hand-
held radios, and infra-red glint tape for better identification
by NATO forces, and a handful of other similar items.
An additional $53.5 million in humanitarian assistance was
provided to organizations providing relief for refugees in
surrounding countries. It is estimated that over 750,000 people
have fled to neighboring Chad, Egypt, Niger, Algeria and
Tunisia since the start of the crisis in February.
Additionally, approximately 200,000 internally displaced
persons (IDPs) from Brega, Ras Lanuf, and Ajdabiya are in
eastern Libya.
The Committee on Foreign Affairs continues to engage in
detailed and ongoing oversight over the purpose and recipients
of such assistance.
On May 5th, it was reported that the Administration will
seek legislation to allow them to ``vest,'' or confiscate,
``assets and property held by the government of Libya,
including the Central Bank of Libya, in the jurisdiction of the
United States and invest all or part of that in any agency or
individual designated by the President to provide humanitarian
relief and protect civilians in Libya.'' The United States
currently holds $33 billion in frozen Libyan assets and
property, of which $150 million has been proposed for vesting.
Qaddafi has condemned the proposal as ``piracy.''
Congressional staff briefings were held on Wednesday, May
11th to discuss the disposition of Libyan assets.
Questions have been raised at various Committee hearings
and briefings, and continue to be raised, about who the
opposition is and what their ultimate objectives might be,
beyond removing Qaddafi from power. The Interim Transitional
National Council (TNC) is an opposition coalition reportedly
formed to represent Libyans from its base in Benghazi. The
extent of the group's domestic political legitimacy and
authority is unclear, although its stated aspirations and
appeals are addressed to all Libyans and its claims have been
endorsed by some Libyans abroad, including some Libyan
expatriate groups in Europe and the United States. The TNC
claims many of the local and regional citizen councils that
formed across Libya in the wake of the uprising have endorsed
the Council and its agenda.
However, limited information is available to U.S. agencies
about the TNC's relationships with emergent opposition leaders,
particularly in western Libya, where TNC leaders have claimed
their identities need to remain secret for their protection.
Qaddafi and his supporters have accused his opponents,
including the TNC, of having an eastern regional separatist
agenda and of serving as a front for Al Qaeda. The TNC has
denied these accusations, stressing its broad nationalist
orientation and denying formal connections to religious
militants, while acknowledging that some Islamists, including
former Libyan Islamic Fighting Group members, are involved in
military operations against pro-Qaddafi forces.
The process of assessing TNC leaders and the totality of
the Qaddafi opposition is ongoing by the Executive Branch and
consultations continue between the Administration and the
Committee on the U.S. approach to the Libyan opposition.
In the days and weeks ahead, with regard to Libya and
elsewhere, the Committee on Foreign Affairs intends to continue
active oversight of its core jurisdiction under House Rule XI
concerning relations of the United States with foreign nations
generally, including interventions abroad and declarations of
war.
Oversight and Hearings
The Committee's attention to Libya predated the March 19,
2011 deployment of U.S. forces there, and certainly has
continued since that time.
Prompted by political developments inside Libya in
February, the Committee requested and received a staff briefing
by the Central Intelligence Agency on Libya and other Middle
East/North African flashpoints on February 25, 2011.
On February 28, 2011, Committee staff participated in the
first of continuing, weekly interagency conference call
briefings on the democracy, conflict, humanitarian, and refugee
situations in the region, which was followed by additional
briefings on March 8, March 15, March 22, and March 29.
On March 22, 2011, three days after U.S. forces began
operations inside Libya (and following Committee requests for a
briefing), the National Security Council, the Department of
State, and the Department of Defense briefed designated House
and Senate Leadership and Committee staff.
On Wednesday, March 30, 2011, a House-wide, classified
briefing on U.S. involvement in Libya was held for all
interested House Members by Secretary of State Clinton,
Secretary of Defense Gates, and other Administration officials.
On Thursday, March 31, 2011, the full Committee held a
hearing on ``Libya: Defining U.S. National Security Interests''
where Members probed in detail the justifications, scope, and
objectives of U.S. intervention in Libya with Deputy Secretary
of State James B. Steinberg.
On April 1, 2001, the Foreign Affairs Committee held a
Members' Ambassadorial roundtable on developments in Libya,
Egypt, and Iran.
On April 7, 2011, the full Committee held a hearing on the
United Nations with Ambassador Susan Rice, which included
discussion of the UN-sanctioned no-fly zone over Libya.
Also on April 7, telephone pre-consultations regarding the
President's intent to exercise drawdown authority to provide
non-lethal assistance in Libya prompted a Committee request for
a classified briefing.
On April 13, 2011, the Subcommittee on Middle East and
South Asia held a hearing on ``Shifting Sands: Political
Transitions in the Middle East, Part I'' that addressed the
situation in Libya with a panel of private experts.
On April 15, 2011, the Committee received a memorandum of
justification for the President's proposed drawdown to protect
civilian-populated areas under attack in Libya, and held a
classified briefing on that subject on April 19, 2011.
Weekly interagency staff briefings on the regional
democracy, conflict, human rights, and refugee situations
continued through the month of April, and beyond (on April 5,
April 12, April 19, April 26, and May 3, 2011).
On May 5, 2011, the Subcommittee on Middle East and South
Asia held a hearing on ``Shifting Sands: Political Transitions
in the Middle East, Part II'' that addressed the situation in
Libya and U.S. involvement, with the Assistant Secretary of
State for Democracy, Human Rights, and Labor, and the Deputy
Assistant Secretary of State for Near Eastern Affairs.
The Committee had scheduled a May 11, 2011 House-wide
briefing for Members on ``War Powers and the United States
Operations in Libya,'' with noted legal experts on those
issues, which had to be postponed at the last minute due to the
House floor schedule. The Committee currently intends to
reschedule that briefing for a date in the near future.
On May 11, 2011, the Speaker's Office hosted a briefing for
staff of the Committees on Foreign Affairs, Financial Services,
and Appropriations on a proposal for the disposition of frozen
Libyan assets.
Committee Consideration
On May 11, 2011, the Committee on Foreign Affairs
considered H. Res. 209, pursuant to notice, in open session,
and agreed to a motion to report the resolution to the House
favorably, with amendments, by voice vote.
New Budget Authority
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee states that no
such statement is required because H. Res. 209 does not provide
for any new budget authority, any new spending authority, any
new credit authority, or an increase or decrease in revenues or
tax expenditures.
Congressional Budget Office Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee states, with
respect to H. Res. 209, that the Director of the Congressional
Budget Office did not submit a cost estimate and comparison
under section 402 of the Congressional Budget Act of 1974.
Performance Goals and Objectives
In compliance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee states that no
such statement is required because H. Res. 209 does not contain
any authorization of funding.
Changes in Existing Law
No change in existing law is proposed by this resolution.