[House Report 112-76]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     112-76

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



 
     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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.

                                 
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