The New York Times has a blockbuster of a story about how Obama ignored the advice of the top lawyers at the Pentagon and the Office of Legal Counsel about whether or not our actions in Libya amounted to "hostilities" and so needed congressional support. When they gave the advice that he didn't like, he went around them.
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.Ah, this explains the use of the euphemism, "kinetic military action," that the administration insisted on using. Can't use any vocabulary that might indicate that we are involved in hostilities.
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.
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.
Insert here the howls of moral indignation if the Bush administration had done this:
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.That's a pretty straightforward "the ends justify the means" argument. We knew he had to make that decision so whatever process he used had to be "legitimate."
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 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.
And I love this description of Obama as a "constitutional lawyer." What made him one? Has he written articles or argued constitutional issues before the courts? No, he just got hired to teach classes at the University of Chicago straight out of law school. How many other law professors does the University of Chicago have who never published any articles or argued any significant cases? And while he was there, he used the time to write his first book and then run for state office. He got a sinecure and they got a black professor. Would a white graduate with the same resume have been given a job there?
The courses he taught were on due process and equal rights. They weren't on separation of powers or presidential powers. But the NYT slips in that little comment that he is a constitutional lawyer. Are they trying to indicate that he is above having to listen to the advice of the OLC?
It's rather cute to argue that we aren't involved in hostilities there when the troops involved are receiving combat pay.
This whole story now gets thrown into the lap of Congress. Do they insist on their perogatives over military action? If so, what can they do? It's unlikely that the courts would want to get into a political argument over which branch controls decisions on military action. The War Powers Resolution has never been ruled on though there are plenty of scholars who doubt its constitutionality.
The one thing Congress can do is cut off the funds. But they won't do that in the middle of action. They wouldn't do it for a much more unpopular "hostilities" in Iraq in 2007 and they won't do it now for drones firing on Qaddafi. But John Boehner asked for this information and now he's got to figure out what to do with it. As Allahpundit points out, Obama could have gotten congressional approval if he'd asked right at the beginning.
[Obama] almost certainly could have gotten congressional authorization shortly after the mission began if he’d asked for it, but for reasons I still don’t understand, he refused. I guess he wants to maximize his presidential prerogative to use drones anywhere he likes, notwithstanding Johnson’s assessment that that’s enough to constitute “hostilities” under the WPA, in order to give himself a free hand in Yemen and beyond. Good work, champ — you’ve now forced a high stakes, politically risky separation-of-powers confrontation with Congress over a conflict to which virtually no one has paid attention for weeks.
ere’s Harry Reid insisting that the War Powers Act doesn’t apply here, and even if it did, “this thing’s going to be over before you know it anyway.” Which is basically what Obama himself said — three months ago. Remember “days, not weeks”? Exit question: That’s going to be one awkward round of golf, huh?