[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
     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

=======================================================================

                                 MARKUP

                               BEFORE THE

                      COMMITTEE ON FOREIGN AFFAIRS
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                                   ON

                              H. Res. 209

                               __________

                              MAY 11, 2011

                               __________

                           Serial No. 112-39

                               __________

        Printed for the use of the Committee on Foreign Affairs


 Available via the World Wide Web: http://www.foreignaffairs.house.gov/

                                 ______



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                      COMMITTEE ON FOREIGN AFFAIRS

                 ILEANA ROS-LEHTINEN, Florida, Chairman
CHRISTOPHER H. SMITH, New Jersey     HOWARD L. BERMAN, California
DAN BURTON, Indiana                  GARY L. ACKERMAN, New York
ELTON GALLEGLY, California           ENI F.H. FALEOMAVAEGA, American 
DANA ROHRABACHER, California             Samoa
DONALD A. MANZULLO, Illinois         DONALD M. PAYNE, New Jersey
EDWARD R. ROYCE, California          BRAD SHERMAN, California
STEVE CHABOT, Ohio                   ELIOT L. ENGEL, New York
RON PAUL, Texas                      GREGORY W. MEEKS, New York
MIKE PENCE, Indiana                  RUSS CARNAHAN, Missouri
JOE WILSON, South Carolina           ALBIO SIRES, New Jersey
CONNIE MACK, Florida                 GERALD E. CONNOLLY, Virginia
JEFF FORTENBERRY, Nebraska           THEODORE E. DEUTCH, Florida
MICHAEL T. McCAUL, Texas             DENNIS CARDOZA, California
TED POE, Texas                       BEN CHANDLER, Kentucky
GUS M. BILIRAKIS, Florida            BRIAN HIGGINS, New York
JEAN SCHMIDT, Ohio                   ALLYSON SCHWARTZ, Pennsylvania
BILL JOHNSON, Ohio                   CHRISTOPHER S. MURPHY, Connecticut
DAVID RIVERA, Florida                FREDERICA WILSON, Florida
MIKE KELLY, Pennsylvania             KAREN BASS, California
TIM GRIFFIN, Arkansas                WILLIAM KEATING, Massachusetts
TOM MARINO, Pennsylvania             DAVID CICILLINE, Rhode Island
JEFF DUNCAN, South Carolina
ANN MARIE BUERKLE, New York
RENEE ELLMERS, North Carolina
VACANT
                   Yleem D.S. Poblete, Staff Director
             Richard J. Kessler, Democratic Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page

                               MARKUP OF

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...........     2
  Amendment in the nature of a substitute to H. Res. 209.........     4

                                APPENDIX

Markup notice....................................................    14
Markup minutes...................................................    15
The Honorable Gerald E. Connolly, a Representative in Congress 
  from the Commonwealth of Virginia: Prepared statement..........    17
Markup summary...................................................    18
     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

                              ----------                              


                        WEDNESDAY, MAY 11, 2011

                  House of Representatives,
                              Committee on Foreign Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 4:40 p.m., in 
room 2172, Rayburn House Office Building, Hon. Ileana Ros-
Lehtinen (chairman of the committee) presiding.
    Chairman Ros-Lehtinen. The committee will come to order.
    I am pleased to convene this markup meeting of the 
Committee on Foreign Affairs to address a privileged resolution 
of inquiry that requires prompt committee action.
    Pursuant to notice, for purposes of a markup, I call up the 
resolution, House Resolution 209, which directs the Secretary 
of State to transmit to the House of Representatives certain 
documentation relating to consultation with Congress regarding 
military actions in or against Libya.
    Without objection, the resolution will be considered as 
read and open for amendment at any point and the amendment in 
the nature of a substitute that members have before them, which 
also was provided previously to your offices, will be 
considered as read and as base text for purposes of amendment.
    [H. Res. 209 follows:]

    
    
    
    
    [The amendment in the nature of a substitute follows:]

    
    
    
    

    Chairman Ros-Lehtinen. Without objection, to help us 
economize on time this afternoon and avoid being interrupted by 
votes on the floor, committee members wishing to submit 
prepared statements for the markup record are given 5 
additional calendar days to do so.
    Before turning to the ranking member, I recognize myself to 
speak on this measure.
    As mentioned before, we are meeting today to mark up House 
Resolution 209, a privileged motion of inquiry seeking from the 
State Department certain information relating to their 
notification of and consultation with Congress regarding the 
recent U.S. military intervention in Libya. Resolutions of 
inquiry require our committee to act within 14 legislative days 
in order to maintain our legislative prerogatives.
    Late last week, the House Parliamentarian notified us that, 
due to unanticipated days of pro forma session, their original 
May 23rd deadline filing estimate had suddenly moved to this 
Friday, May 13th. Resolutions of inquiry do not create any 
enforceable legal obligations and, therefore, do not provide 
clear legal advantages over the oversight tools available to 
this committee.
    The text we are considering today incorporates minor 
changes that were worked out with the resolution author and 
were also included in a bipartisan amendment that the House 
Armed Services Committee adopted earlier today when it 
considered a substantially identical resolution of inquiry 
directed to the Department of Defense.
    In addition to identifying U.S. operations in Libya with 
greater specificity, the amended language focuses the request 
to, quote deg. ``any official document, record, memo, 
correspondence, and other communication of the Department of 
State.'' end quote. deg.
    In light of the already robust committee oversight of 
developments in Libya and U.S.-Libya policy, it is unclear how 
this resolution would add to congressional understanding of 
these issues. The full range of legal issues regarding U.S. 
involvement in Libya, along with policy questions about U.S. 
objectives in Libya, have been and will continue to be a 
subject of inquiry and oversight by this committee.
    Nearly 2 years in advance of these developments, the 
committee had placed holds on proposed armored personnel 
carrier sales to the Qadhafi regime. Our tough questions helped 
to quash these sales, and we can be proud that our oversight 
prevented Qadhafi from using that American technology in his 
murderous campaign against Libyan civilians.
    A year and a half ago, committee objections prompted the 
Obama administration to back away from a proposal to give 
hundreds of thousands of dollars to Qadhafi-run foundations. 
Since the dramatic developments inside Libya began this spring, 
our committee's oversight has included six hearings, including 
our full committee hearing with Deputy Secretary of State 
Steinberg within days of the congressional notification of U.S. 
air strikes, a House-wide classified Members briefing 
originally requested by our committee, a Members ambassadorial 
roundtable, more than 10 weekly interagency staff briefings, 
and 3 classified staff briefings.
    I am disappointed that today's floor votes forced the 
postponement of today's scheduled House-wide briefing on war-
powers issues relating to Libya, but we will reschedule that as 
soon as we are able.
    The committee also has been conducting exacting due 
diligence regarding the administration's pre-notifications, 
notifications, and requests for humanitarian and non-lethal 
defense assistance, and proposals for using frozen Qadhafi 
regime assets. We have been in active consultation with the 
executive branch and, when necessary, placing informational 
holds until we receive sufficient specificity about proposed 
assistance and recipients from State and other agencies. We 
want accountability down to the last bandage, and, so far, we 
are receiving it.
    Looking ahead, we will continue to explore other key 
questions about our Libya involvement, such as: Whom are we 
helping exactly in Libya? Who are these armed rebels? And who 
are the Interim Transitional National Council members? What 
safeguards and criteria are we using to ensure that U.S. 
assistance serves U.S. national interests?
    I want to assure our members that we will be pursuing these 
and other issues with the same vigor that we have been 
conducting our Libya oversight to date.
    I want to thank the ranking member and his staff for their 
cooperation in making today's prompt committee action possible.
    I now recognize the ranking member, Mr. Berman, for any 
remarks he may have on this measure.
    Mr. Berman. Well, thank you, Madam Chairman.
    And I share your sense that the President should consult 
fully with Congress prior to the use of military force. This 
committee's most important function is to review the use of 
military force abroad.
    Although I would have welcomed further congressional 
consultation prior to military operations in Libya, I believe 
the urgency of the situation required immediate action. As many 
advocates observed, preventing a humanitarian catastrophe in 
Libya was critical--or perhaps I should say, an even greater 
humanitarian catastrophe in Libya was critical.
    I support the amendment proposed by the chairman, and I 
appreciate her efforts to limit the scope of this resolution of 
inquiry.
    The underlying resolution seems more calculated to force an 
unprecedented disgorging of administration documents than a 
thoughtful examination of congressional prerogative in 
authorizing use of force. There are certainly several 
outstanding questions regarding the War Powers Resolution in 
the Libya context, but this resolution is the wrong way to 
examine those issues. I appreciate the chairman's efforts to 
address its shortcomings.
    On a related note, I note the fact that the Armed Services 
Committee will mark up two provisions today related to the 2001 
authorization for the use of military force. One provision will 
expand the authorization for the use of military force, while 
the other will authorize the Secretary of Defense to undertake 
cyber warfare pursuant to the AUMF of 2001.
    Both of these provisions represent important efforts to 
clarify the President's authority to use force. They also fall 
squarely within the four corners of this committee's 
jurisdiction, and for good reason: The Foreign Affairs 
Committee is the best positioned to evaluate the foreign-policy 
bases and, ultimately, the implications of the use of force.
    The authorizations proposed, although characterized as 
reaffirmations, pose numerous questions. For example, the cyber 
provision would give the President authority to conduct cyber 
attack missions under the 2000 AUMF. Are these offensive 
missions or just defensive ones? A cyber attack mission could 
be construed by a state being attacked as an act of war, which 
could result in a hot conflict. There is a fine line, given the 
evolving capabilities of cyber technologies, which argue for 
caution in our approach.
    I look forward to working with the chairman and with 
Chairman McKeon of the Armed Services Committee and Ranking 
Member Smith to ensure these provisions adequately incorporate 
the concerns of this committee. And I intend to support the 
amendment in the nature of a substitute and final passage of 
it.
    I yield back the balance of my time.
    Chairman Ros-Lehtinen. Thank you, Mr. Berman.
    Are there any other members seeking recognition on this 
measure?
    Mr. Rohrabacher. Yes, Madam Chair.
    Chairman Ros-Lehtinen. Mr. Rohrabacher is recognized for 5 
minutes.
    Mr. Rohrabacher. Thank you very much, Madam Chairwoman. And 
let me just note that I appreciate your leadership on this.
    When we are involved in these types of activities, we are 
setting precedent that is important for what we are doing right 
now but also for what will be done in the future. And so we 
always have to be aware of that and watch out for the 
prerogatives of the legislative branch, but also, having served 
in the executive branch, supportive of the prerogatives of the 
executive branch along with us. This is not just a fight over 
jurisdiction between the legislative and the executive branch, 
but it, instead, is a constitutionally definable action that is 
being taken by us as patriots trying to do what is right for 
our country.
    So I appreciate your leadership in this.
    Let me just note this resolution is about asking about 
trying to determine who these insurgents are that we are 
helping down in Benghazi and who are fighting the Qadhafi 
dictatorship.
    Let me just note, at my office tomorrow between 3 o'clock 
and 4 o'clock, the interim prime minister of the rebels will be 
there and be willing to talk to anybody. His name is Mahmoud 
Jibril, who is the interim prime minister for the democratic 
movement in Benghazi, and would be willing to answer any 
questions that we would have if we would like to ask him 
directly, rather than trying to talk through the 
administration.
    So thank you very much. And everyone would be invited 
tomorrow to my office, 3 o'clock to 4 o'clock.
    Chairman Ros-Lehtinen. Thank you, Mr. Rohrabacher.
    Any other members wish to be heard?
    Mr. Sherman is recognized for up to 5 minutes.
    Mr. Sherman. The executive branch often likes to turn 
Congress into a mere advisory body: Brief us, consult with us, 
ignore anything we have to say, and not acknowledge the idea 
that it might involve a vote of Congress to engage in a 
particular foreign policy adventure. Sometimes this is more 
comfortable for us, because we avoid then having to vote on 
what is a close call. And Libya is, indeed, at least for me, a 
close call.
    But our efforts to bring democracy to Libya should not 
involve shredding the U.S. Constitution or the War Powers 
Resolution or War Powers Act, which is the law of the land.
    Hostilities began on March 19th. Within 48 hours, the 
President filed a report. That means he has until May 21st to 
have a resolution of approval from Congress or, assuming our 
laws mean anything, he is supposed to begin a prompt withdrawal 
to take less than 30 days.
    So far, the President has not asked for authorization, nor 
has any Member of Congress submitted a resolution of 
disapproval. We ought to be exercising our responsibilities, 
even if it is difficult to do so.
    I, for one, am worried about two things. First, as Mr. 
Rohrabacher points out, who are we helping? For example, why is 
Mr. al-Hasidi one of the rebel commanders when he boasts of 
taking actions that no doubt killed Americans in both Iraq and 
Afghanistan? The second issue is, why are we being told that 
this involvement costs less than $1 billion 
dollars deg., which is clearly false? And why are we not using 
some of the seized Qadhafi assets to pay our costs?
    I am sure other members have other questions. But the big 
question is, do any of our questions matter at all? If the War 
Powers Act can be ignored, if the Congress is not necessary to 
conduct military actions for longer than 60 days, what role do 
we play?
    A number of us, but all too few of us, signed a letter to 
congressional bipartisan leadership, urging that the continuing 
resolution contain a provision stating that no funds provided 
could be spent for operations in violation of the war powers--
what I call the War Powers Act, what is officially called the 
War Powers Resolution. It is a public law of this country. 
Unfortunately, that provision wasn't included.
    And so, in all likelihood, as we are back in our districts 
talking to schoolchildren about the majesty of our democracy, 
the President will carry on military operations in violation of 
the War Powers Act and no one in Congress will be doing 
anything to say that the law should be complied with.
    So this resolution before us today is the tiniest of steps 
that we could take to indicate that maybe Congress should be 
involved, at least in being able to look at some of the 
documents.
    But our real role under the law and the Constitution is to 
stand up and vote one way or the other. Should military 
operations continue for more than 60 days, or should the 
President be required to withdraw? And I can't say I would 
relish such a vote, because it would be a difficult vote for 
me. But that is the role we ought to be playing.
    I yield back.
    Chairman Ros-Lehtinen. Mr. Poe is recognized for 5 minutes.
    Mr. Poe. Thank you, Madam Speaker.
    No question about it, Muammar Qadhafi is a bad guy. But it 
concerns me whether the Constitution has been followed in this 
operation in Libya. It seems now the United States engages in 
war in the name of humanity, which makes us the ones who decide 
what countries we will drop bombs on and what countries we 
decide to give a pass, like Syria.
    I am, too, concerned about the War Powers Act and whether 
it has been followed or not. And this proceeding we are having 
today, I think, is very important so we get some answers.
    Once again, it is imperative that Muammar Qadhafi be dealt 
with, but I am not so sure the Constitution gives the United 
States any precedent, even through the War Powers Act, when the 
United States' national security is not at risk, to suddenly 
pick a side in a country and help call an overthrow of a bad 
government.
    So I look forward to more dialogue on this issue. Congress 
needs some answers. Congress should be consulted. That is our 
responsibility, to make those decisions. And unilateral 
operation by any administration in sending U.S. military forces 
throughout the world, not complying with the War Powers Act, is 
something that is important to me and something we should be 
concerned about.
    So, with that, I will yield back the remainder of my time.
    Chairman Ros-Lehtinen. Thank you, Judge Poe.
    And seeing no further baseball signals, requests for time--
oh, Mr. Payne is recognized for up to 5 minutes.
    Mr. Payne. Just a continuing discussion, I guess it was 
back in the Gulf of Tonkin in 1965, the whole question of the 
War Powers Act. It is very interesting that the War Powers Act 
gets into discussion whenever somebody is on the other side of 
whatever our President has done.
    We haven't declared war since, I guess, Pearl Harbor in the 
1940s, actual declaration of war, declaring war, I guess, on 
December the 7th against Japan and December the 8th on Germany. 
So, you know, this discussion of really--and I think that it is 
argued on all sides what constitutes a war, what constitutes an 
action, what--you know, it is a lot of semantics. We prosecute 
wars now.
    You know, it is a debate, I think, that we certainly need 
to keep before us. I do think certainly Congress has a very 
responsible position. I am not so sure that I would consider 
our intervention with NATO in Libya as declaring war and, 
therefore, we need to have a vote in Congress on the war 
against Libya.
    So I think that I have the confidence in the Commander-in-
Chief and feel that the judgment of the Secretary of Defense 
and the Secretary of State and Vice President and people with a 
lot of information and a lot of knowledge. I, certainly in this 
instance, I think, like I said, once and for all, we ought to 
get the War Powers Act straight. But I have heard it argued 
from so many different points of view during my time in 
Congress.
    But I think that the President waited for others to act. We 
were not the ones moving out there ahead of the action. And so 
I, therefore, certainly would oppose this resolution.
    Chairman Ros-Lehtinen. Mr. Manzullo is recognized.
    Mr. Manzullo. My question goes to the extent to which these 
documents will bring forth information. What we have is a 
situation where Congress has been ignored and deference has 
been paid to the African Union, the Arab League, and the United 
Nations. This body has not had the opportunity to vote on the 
intervention in Libya.
    Then, about 3 weeks ago, there was an announcement that $20 
million in non-lethal aid was being given to the Libyans under 
the guise of humanitarian aid, but, the very next day, the 
drones were sent into Libya. Now, this past week, we have a 
high-ranking official from Libya saying that they are going to 
sell the $20 million in non-lethal aid that was given and use 
that to buy weapons for Qadhafi and the government troops.
    This is a circle that doesn't end. The longer we stay out 
of exercising our constitutional powers to either declare war 
on Libya or get the heck out, the worse it is going to get. My 
question is whether or not this issue of the sale of the non-
lethal aid by the Egyptian Government, will that be uncovered 
in some of these documents? How far does the request for these 
documents go?
    Chairman Ros-Lehtinen. Mr. Manzullo, would you yield?
    Mr. Manzullo. Of course.
    Chairman Ros-Lehtinen. We do have a classified briefing 
that is going to be on Pakistan on Thursday, but I think that 
the folks who will be there, may be able to answer your 
question related to Libya, as well----
    Mr. Manzullo. Okay.
    Chairman Ros-Lehtinen [continuing]. If you would grace us 
with your presence.
    Mr. Manzullo. Well, usually, if it is classified, they 
don't say anything that you don't see the morning before in 
both newspapers. But if you could ask those people to give us 
some fresh information----
    Chairman Ros-Lehtinen. We sure will. If the gentleman would 
yield----
    Mr. Manzullo. This question needs to be asked. What has 
happened to $20 million in taxpayers' money that was supposed 
to be non-lethal aid? Now Libya says they are going to sell it 
and use it to buy bullets with the help of Qadhafi's regime.
    Maybe I am missing something, but I think the rest of the 
members of our committee share the same angst. My question is, 
when the request for documents are presented, are there 
inquiries saying, ``Do you have any documents related to''--and 
then we ask the question in there? Is that how that works on 
the official inquiry?
    Chairman Ros-Lehtinen. If the gentleman would yield?
    Mr. Manzullo. Of course.
    Chairman Ros-Lehtinen. We can provide you the information 
that we have on the expenditure of the funds up to date. We 
will be glad to give you that information, the information that 
we have----
    Mr. Manzullo. Okay, but----
    Chairman Ros-Lehtinen [continuing]. And we will see if that 
satisfies you.
    Mr. Manzullo. But I am sure you will be asking for further 
documents----
    Chairman Ros-Lehtinen. Absolutely, we will.
    Mr. Manzullo. Also, as to whether or not it has been re-
gifted.
    Chairman Ros-Lehtinen. If the gentleman will yield, we will 
continue to ask----
    Mr. Manzullo. Thank you.
    Chairman Ros-Lehtinen [continuing]. And ask and ask.
    Mr. Manzullo. Thank you.
    Mr. Berman. Not that there is anything wrong with that.
    Mr. Manzullo. I yield back.
    Chairman Ros-Lehtinen. Thank you.
    Seeing no further requests for time on this measure and no 
further amendments, and seeing that a reporting quorum is 
present, I move that the measure be reported favorably to the 
House, as amended.
    All those in favor, say, ``Aye.''
    All opposed, ``No.''
    The ayes have it, and the motion to report favorably is 
agreed to.
    Without objection, the bill, as amended, will be reported 
as a single amendment in the nature of a substitute, and the 
staff is directed to make technical and conforming changes.
    This concludes our business for today. And I would like to 
thank all of the members and their staff for their effort and 
cooperation to make this prompt action possible.
    And a reminder that we will set up the war-powers briefing 
when we come back.
    And, with that, the committee is adjourned.
    [Whereupon, at 5:05 p.m., the committee was adjourned.]
                                     

                                     

                            A P P E N D I X

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     Material Submitted for the Hearing RecordNotice deg.



                               Minutes deg.

                               
                               
                               
                               
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