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Africa North
Top Lawyers Lost to Obama in Libya War Policy Debate
2011-06-18
WASHINGTON -- President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department's Office of Legal Counsel, had told the White House that they believed that the United States military's activities in the NATO-led air war amounted to "hostilities." Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team -- including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh -- who argued that the United States military's activities fell short of "hostilities." Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.
So it isn't, despite the NYT headline, that Mr. Obama refused to listen to lawyers; he decided to listen to his in-house lawyers rather than the DoJ lawyers. That's an important distinction, since lawyers to tend to disagree with each other a fair bit.

But what is better, as Tom Maguire reminds us, is that the good Mr. Koh has for the past quarter-century written about how presidential power is limited in these matters: the War Powers Act is binding, according to him, and presidents cannot act unilaterally to go to war. Unless it's his current client, that is.
Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office's interpretation of the law is legally binding on the executive branch.
That's a silly statement: the OLC works for the President. They are the President's in-house counsel. They don't run the White House, they advise the White House.
A White House spokesman, Eric Schultz, said there had been "a full airing of views within the administration and a robust process" that led Mr. Obama to his view that the Libya campaign was not covered by a provision of the War Powers Resolution that requires presidents to halt unauthorized hostilities after 60 days.
Mr. Obama is both wrong and foolish to engage the country in a war without congressional approval. But he didn't 'disregard' the lawyers, he just came to a different conclusion, one that fit what he wanted to do. Unexpectedly, of course.
"It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict," Mr. Schultz said. "Those disagreements are ordinary and healthy."

Still, the disclosure that key figures on the administration's legal team disagreed with Mr. Obama's legal view could fuel restiveness in Congress, where lawmakers from both parties this week strongly criticized the White House's contention that the president could continue the Libya campaign without their authorization because the campaign was not "hostilities."

The White House unveiled its interpretation of the War Powers Resolution in a package about Libya it sent to Congress late Wednesday. On Thursday, the House speaker, John A. Boehner, Republican of Ohio, demanded to know whether the Office of Legal Counsel had agreed.

"The administration gave its opinion on the War Powers Resolution, but it didn't answer the questions in my letter as to whether the Office of Legal Counsel agrees with them," he said. "The White House says there are no hostilities taking place. Yet we've got drone attacks under way. We're spending $10 million a day. We're part of an effort to drop bombs on Qaddafi's compounds. It just doesn't pass the straight-face test, in my view, that we're not in the midst of hostilities."

A sticking point for some skeptics was whether any mission that included firing missiles from drone aircraft could be portrayed as not amounting to hostilities.
Dropping bombs certainly seems to be 'hostile', unless you buy Joseph Heller's idea that it is just a 'special service'...
As the May 20 deadline approached, Mr. Johnson advocated stopping the drone strikes as a way to bolster the view that the remaining activities in support of NATO allies were not subject to the deadline, officials said. But Mr. Obama ultimately decided that there was no legal requirement to change anything about the military mission.

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.
I'll bet that simply isn't true: the client may be foolish not to listen to his lawyer but I'll bet that past presidents have overridden the advice of the OLC, and for various reasons.
In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel's thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is supposedly a constitutional lawyer, and he made the decision.

A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was "legitimate" because "everyone knew at the end of the day this was a decision the president had to make" and the competing views were given a full airing before Mr. Obama.

The theory Mr. Obama embraced holds that American forces have not been in "hostilities" as envisioned by the War Powers Resolution at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to a supporting role providing refueling assistance and surveillance -- although remotely piloted American drones are still periodically firing missiles.

The administration has also emphasized that there are no troops on the ground, that Libyan forces are unable to fire at them meaningfully and that the military mission is constrained from escalating by a United Nations Security Council resolution.

That position has attracted criticism. Jack L. Goldsmith, who led the Office of Legal Counsel during the Bush administration, has written that the administration's interpretation is "aggressive" and unpersuasive, although he also acknowledged that there was no clear answer and little chance of a definitive court ruling, so the reaction of Congress would resolve it.
As long as the Dems hold the Senate there will be no resolution from Congress.
Walter Dellinger, who led the Office of Legal Counsel during the Clinton administration, said that while "this is not an easy question," Mr. Obama's position was "both defensible and consistent with the position of previous administrations." Still, he criticized the administration's decision-making process.

"Decisions about the lawfulness of major presidential actions should be made by the Department of Justice, and within the department by the Office of Legal Counsel, after consultation with affected agencies," he said. "The president always has the power of final decision."
That last point is correct: the buck indeed stops with the President.
Other high-level Justice lawyers were also involved in the deliberations, and Attorney General Eric H. Holder Jr. supported Ms. Krass's view, officials said.

Matthew Miller, a Justice Department spokesman, said, "Our views were heard, as were other views, and the president then made the decision as was appropriate for him to do."
Posted by:

#17  Frank: I understand that the Dems' whole "point" is that _this_ intervention is legal because it has the UN seal of approval, and that that makes anything any subservient-to-UN US institutions, like Congress or the Supremes, besides the point.
Posted by: Thing From Snowy Mountain   2011-06-18 22:44  

#16  Heh Frank -- I caught that President Perry thingy....
Posted by: Sherry   2011-06-18 21:38  

#15  The whole War Powers Act was an attempt at a Legislative veto created in the post-Vietnam era when the Donks wanted to hobble the Executive but not be placed in a situation of defunding the entire defense establishment in face of the reality of the Soviet el al threats in the world.

for that reason alone, the Reps should push this down Obama's and the Donks' throats: "Do you support this ONLY when a Rep is the Executive"? - if so, then you are a partisan hack. Or ....is it unconstitutional, and available to President Perry in 2012 without congressional bitching?

Your response in 4...3...2..
Posted by: Frank G   2011-06-18 18:43  

#14  He doesn't need the Constitution?

Technically he's within the Constitution. The Legislative branch, given the international security situation since WWII, has granted the Executive branch a large standing military. The Founding Fathers never anticipated such a thing except during time of war. By keeping tight hold on the purse strings the history of the country shows that it funded just enough, and sometimes, not enough of a standing force, to deal with problems on the frontier and commerce issues at sea. It was understood from the beginning that to deal with such emergencies, the government didn't have time to convene Congress in order to get the troops or sailors to the point of conflict for what would be today considered a 'police action'. To fund a large forces and operations, the Executive has had to traditionally (pre-WWII) request the resources first from Congress who would either provide what was requested or not but usually with a 'use by date' attached.

The whole War Powers Act was an attempt at a Legislative veto created in the post-Vietnam era when the Donks wanted to hobble the Executive but not be placed in a situation of defunding the entire defense establishment in face of the reality of the Soviet el al threats in the world.

It is an unresolved issue in which the mechanisms of the Constitution say if you don't want him to be able to play with the toys, you have to take the funding away from him. That doesn't work well in a world where you're the big boy upon which everyone else expects you to have the means to play policeman or cowboy. That issue is also compounded by treaties approved by the Senate which obligate the country in international organizations.

Congress' power resides in its authority under Article I, Section 8, to control the purse strings, to approve the size of the military forces, and approve/disapprove the appointment of officers. If Congress does not act in these areas and just rubber stamps what the Executive wants, its Congress' problem when it comes to these type of military actions.
Posted by: Procopius2k   2011-06-18 17:39  

#13  Dropping bombs certainly seems to be 'hostile', unless you buy Joseph Heller's idea that it is just a 'special service'...

There is an interesting thought. If you could outsource the work in Libya to a private firm, it just becomes another government contract without all that sticky War Powers Act stuff. Works for piracy, too!

Milo Minderbinders grandson Major Major Milo Minderbinder IX can work a deal with either side. The Minderbinder clan got a world exclusive manufacturing rights on large pointy sprockets, traded their secret recipe for chocolate covered cotton for it.
Posted by: Zombie Hillary Lover   2011-06-18 17:38  

#12  Not a fool, NS. An ideologue with no reality check. Much more damaging.
Posted by: lotp   2011-06-18 15:35  

#11  I'll shed a tear for American foreign policy. see #6. We have stabbed every ally and non-enemy in the back and rewarded every enemy.What a fool obumble is.
Posted by: Nimble Spemble   2011-06-18 15:31  

#10  Granted Gadaffy is an evil mideast dictator with American blood on his hands. If his end came, no one would shed a tear. There are still other evil mideast dictators as bad.

Obama doesn't need the War Powers Resolution? Really? He doesn't need Congress? Really? He doesn't need the Constitution? Really? He only needs an U.N. Security Council resolution where some countries abstained from voting; others opposed the no-fly zone. I also recall Sec. Gates had reservations about Libya. It seems Mr. Obama is on thin ice. His actions are the stuff of dictators. George Bush had the approval of Congress and an U.N. resolution to go into Afghanistan and Iraq.
Posted by: JohnQC   2011-06-18 15:08  

#9  Nimble, thank you very much for that important clarification. I had conflated the OLC and the White House office.

Once again, Rantburg University to the rescue!
Posted by: Steve White   2011-06-18 15:06  

#8  That's a silly statement: the OLC works for the President. They are the President's in-house counsel. They don't run the White House, they advise the White House.

The Office of Legal Counsel (OLC) works for the President in the sense that everyone in the Executive Branch works for the President. But the OLC would more fairly be described as the Executive Branch's (EB) attorney and the Office of Which House Counsel (WHC) as exclusively the President's attorney. The head of the OLC is subject to confirmation by the Senate, the WHC is not. The work product of the WHC may be attorney client privileged and the OLC not.

The OLC issues written opinions that are treated by the Executive branch as definitive until overturned by actual courts. One of the reasons the OLC was created was that prior to it each department in the EB was operating under its own opinion of the law and this led to departments holding conflicting interpretations of a law. The OLC was set up to issue definitive legal opinions to be adhered to consistently across departments. Its opinions have no legal force, but administratively the define the EB interpretation of law until a court ruling is issued. It is unusual for the opinion of the OLC to be overruled. I believe Comrade Obamao is the first to do so since FDR, but I can't find backup.

The fair way to characterize the relationships is that the EB goes to the OLC to find out what the law is prior to court ruling. The OLC may get input some legal, some political, from anyone in the EB including the WHC. And it then renders an opinion for the EB. The President goes to the WHC tells him what he wants to do and tells the WHC to find legal justification for doing it.

Notable AAGs for OLC include Nicholas Katxenbach, William Rhenquist, Antonin Scalia and Ted Olson. WHC have included Ted Sorensen, John Ehrlichman, John Dean, and Harriet Miers.

This is a big deal inside the beltway and will not help Obamao and will provide coverage to those of both parties who want to undermine the banana in Libya.
Posted by: Nimble Spemble   2011-06-18 13:53  

#7  This entire thing is madness. The War Powers Act is blatantly unconstitutional. And whe I appreciate the tactic of beating this president over the head with whatever stick is handy, the better option for Republicans would be to use this opportunity to repeal the Act.
Posted by: Iblis   2011-06-18 13:06  

#6  Yes, 'moose. It's really smart to destroy the only third world strong man who gave WMD.
Posted by: g(r)omgoru   2011-06-18 12:32  

#5  Qadaffi is a pissant psycho who has already killed a bunch of Americans. As a rule of thumb, if you can take out someone like him, go for it. Even if whoever replaces him isn't particularly friendly, there is a lot more to work with if they are sane.
Posted by: Anonymoose   2011-06-18 12:28  

#4  Dropping bombs certainly seems to be 'hostile', unless you buy Joseph Heller's idea that it is just a 'special service'...

There is an interesting thought. If you could outsource the work in Libya to a private firm, it just becomes another government contract without all that sticky War Powers Act stuff. Works for piracy, too!
Posted by: SteveS   2011-06-18 11:47  

#3  I am not sure whether I agree or disagree with the foray into Libya. I do believe he needs to present the case to Congress and the people for authorization. Most likely it would be approved. But for some reason (to try and evade 'ownership'?) he does not want to make his case. Precedent is being set that gives way too much power to the Executive - again! We may all (left, right & middle) come to regret it, if not in this Administration then in some future one.
Posted by: Glenmore   2011-06-18 10:47  

#2  Trying HARD to be recognised as ALREADY King.
As in the Mideast way.
Posted by: Redneck Jim   2011-06-18 10:34  

#1  Obumble really wants to set himself up as a king, doesn't he?
Posted by: DarthVader   2011-06-18 10:19  

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