NYT: Obama overruled top Pentagon, DOJ lawyers on Libya war powers

posted at 10:32 pm on June 17, 2011 by Allahpundit

No “Quotes of the Day” post today. This is big enough that I don’t want anything new on the site distracting from it overnight.

The Times is treating it as the major story that it is, but under a Republican president (especially one named, say, George Bush) it would be a scandal of nuclear proportions. What they’re basically saying here, without actually saying it, is that the president’s own lawyers told him that the Libya war is illegal and he responded by looking around for other lawyers who’d tell him what he wanted to hear.

The congressional hearings begin on Monday, I hope.

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.

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

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.

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.

See what he did here? The OLC is typically called “the president’s law firm” because it’s tasked with advising him on what he can and can’t legally do with his office. They study the law and consult with relevant agencies, and then they make a formal determination to guide his actions. That’s what should have happened here — they likely would have determined that he was violating the War Powers Act, which in turn would have forced him to go to Congress and finally request formal authorization of the mission. (In fact, Johnson, the Pentagon’s counsel, reportedly told Obama he’d be on firmer ground if he stopped the drone strikes, at least. Obama refused.) This time, because he almost certainly knew that they’d tell him that he was in violation, he bypassed the normal procedures to avoid a binding ruling and treated the OLC as if it was just one lawyer among many. He rigged the game because he knew what the probable outcome would be if he didn’t. Disgraceful.

Ironically, Boehner’s now in almost as tough a position as Obama is. He’s the one who confronted O about the War Powers Act after Kucinich forced his hand; now he’ll have to figure out what the proper congressional response to this should be. Does the House hold hearings? Vote to defund the mission, citing Krass and Johnson for authority that it’s illegal? File suit in federal court charging Obama with violating the WPA, even though any court will almost certainly refuse to rule on it on “political question” grounds? And what happens to O’s supporters on Libya in Congress, especially among Democrats, now that his warmaking has been deemed renegade by his own core legal team? This doofus 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.

Here’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? Click the image to watch.

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