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The Spectacle Blog
Quite a scoop from Charlie Savage at the New York Times:
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.
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.
Buried near the end of the story: "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." While it's no surprise that there would be disagreement within the administration, the decision-making process usually works a bit differently, as Savage's story explains:
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.
Zeroing in on that point, Jack Goldsmith comments:
This is not a process designed to produce a sound legal decision. (In the NYT story, former OLC chief Walter Dellinger makes a similar point.) When the President effectively decides the legal question in the first instance based on the input of interested agencies, his legal judgment is inevitably skewed a great deal by wanting to uphold his policy. OLC (and any executive branch lawyer) faces this danger to some degree, but the danger is less pronounced when the initial decision is made in a relatively independent legal office in DOJ as compared to the Oval Office. And indeed in this instance, for reasons I explained here, the best reading of the law was clearly the one that OLC (and DOD) apparently gave the President.
If you follow that link you'll find a long discussion of the problems with the administration's legal theory, and if you read the rest of the newer post you'll find a discussion of how Goldsmith is surprised to see Harold Koh defending the sort of expansive presidential powers that he spent much of his academic career arguing against. I would suggest that Koh's academic views actually help explain the incoherence of the White House's position. There's a fairly straightforward argument for the legality of the administration's actions in Libya, which would hold that the War Powers Resolution is unconstitutional (and that a Congressional declaration of war is not required for initiation of force). But since Koh has spent much of his career arguing against that view, rather than completely reverse himself he adopts the tortured conclusion that the War Powers Resolution is constitutional and Obama is complying with it because the intervention in Libya somehow doesn't amount to "hostilities."
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More Blog Posts by John Tabin
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Michael L. Hauschild| 6.18.11 @ 1:45PM
Lawyers come in four grades: for office holding perps there are the ones you get to defend you provided from your hand selected from the DOJ, for out of office politicians this option vanishes but the alphabet committees keep around partisan minions who garnish huge wages of donor stipends to defend those who still maintain some semblance of political value, third are the private attorneys with equally high rates for the discredited but affluent former office holders, and finally there are the actual hardworking journeymen (while seeking to attain the prior three’s status) still retain some chance of non-earthly reward.
Come 2013 three of these options will be denied the chosen one. He will become, as the rest of us, a pariah who has to pay his way with money left over from what his own policies have not stolen.
Oldefarte| 6.18.11 @ 2:33PM
Let me attempt to 'SPLAIN the situation for all of you non- legal eagles out there, okay? El Chosen One was elected on 11/4/08 and as such obtained the complete control of/representing the US government. As such, he can [and is/will] do virtually anything/everything he so desires to do as presidential holder of this power. The law and lawyers don't mean jack-excrement to him, as HE BEES THE JUDGE! Now, within the last two years, we have all amazingly witnessed this humongous political/citizen uprisings within the middle eastern countries, which never occurred prior to 11/4/08. Why is that, you ask???? Isn't it amazing that these dictatorial ME leaders such as Mubarak, etc are now being overthrown and that the Muslim Brotherhood etc are the predominate political parties/factions now within these countries awating political takeover of same? Do we all remember that not too long ago the Shah of Iran was a similar dictatorial ME leader who was also overthrown and replaced by the current Muslim-terrorist oriented administration of that country? Do we all now see the similar pattern and can we now connect the dots of what is currently transpiring within the middle east? Do we also realize that this has been initiated within the last two years, and after our presidential election of 11/4/08? GET IT NOW, FOLKS???????????????
danny| 6.18.11 @ 4:35PM
uh. i think so.
Mimi| 6.19.11 @ 8:11AM
And then there are the "DEAR FRIENDS"...Bill Ayers & wife going on FLOTILLA vacations....?
W| 6.18.11 @ 3:00PM
How much money do we have to spend before it is "hostilities?" Maybe obama's lawyers are waitng for Americans to die before it is termed "hostilities." I am sure the Libyan civilians dying as a result of the bombing would say it is "hostilities."
Occam's Tool| 6.18.11 @ 4:43PM
Remember folks, Obama is Magna Cum Laude from Harvard Law and taught Constitutional Law at Chicago.
Yup, he's high powered, for Law.
Michael L. Hauschild| 6.18.11 @ 5:03PM
Bachmann just hit the ball out of the park. I can think of six Republicans that are in deep do doo.
PattyMor| 6.18.11 @ 5:39PM
And why is dropping bombs on a nation not war?
Only the tortured logic that has also given us big government could justify that the dropping of bombs is not war.
Pecos Pete| 6.19.11 @ 1:07PM
Amen! War = breaking things. We seem to be breaking stuff in Libya.
bluecollarbytes| 6.18.11 @ 7:47PM
'Kinetic diplomacy'.
and the messiah is there to decide stuff, not worry about the bounds of constitutionality and law.
Obama is the 'pro-active' jimmy carter, not content with simply letting the arab-spring take its course.
He's on the front line, mixing up traditional American foreign policy into an indecipherable mess, which we'll have to deal with for years to come.
Pecos Pete| 6.19.11 @ 1:08PM
King O is practicing his only known profession: community organizing.
Michael Sommerville| 6.18.11 @ 9:11PM
Mr. Obama is not a constitutional lawyer. What articles and books has he written. How many times has he appeared be fore the Supreme Court of the US or Illinois. He was an adjunct professor who taught a constitutional law course. This does not make him a constitutional lawyer.
Occam's Tool| 6.19.11 @ 12:19AM
Mr. Sommerville:
The University of Chicago, one of America's top law schools, felt that he was capable enough to teach Constitutional Law at the University of Chicago at a professorial, not instructorship, level. You are right as to his qualifications. He has no arguments before the Supreme Court, or articles. Yet he was thought capable enough to teach a Constitutional law course at one of America's top Law schools. Of course, keep in mind the pathetic intellectual record of the former Dean of Harvard Law.
As I have said before, the academic rigor of America's Law Schools pales before its Medical Schools, much less its top Graduate schools of Hard Sciences.
Why you would have such a poorly qualified professor teaching one of THE most important Law School courses (c'mon, please write in and tell me how ignorant I am for assuming that the study of the Supreme Law of the US is NOT a trivial course) is, of course, a travesty. I taught a clinical exposure course to prison psychiatry as an adjunct instructor once at a medium level US medical school, and my qualifications are similar in stature to Obama's educational status. I would have had a long row to hoe to get a tenured position there, but Obama was thought to be qualified to teach at a Top Five law school. Uh-huh.
J.C.Eaton| 6.19.11 @ 10:35AM
It's highly doubtful that Obama's students got their money's worth. I agree with you as to the importance of Con Law. Besides being a hell of a ride historically, it should teach what are and how to ask, the great questions of American jurisprudence. Perhaps it's a course though that Law School Deans believe anyone can teach.
Jeff Perren| 6.19.11 @ 2:03PM
Utterly unsurprising. Obama has demonstrated repeatedly (GM bondholders, BP Party case, ObamaCare waivers, Boeing, and more) that he cares absolutely nothing about the law when it opposes his wishes.
weddingdresses| 6.20.11 @ 2:30AM
Why you would have such a poorly qualified professor teaching one of THE most important Law School courses (c'mon, please write in and tell me how ignorant I am for assuming that the study of the Supreme Law of the US is NOT a trivial course) is, of course, a travesty. I taught a clinical exposure course to prison psychiatry as an adjunct instructor once at a medium level US medical school, and my qualifications are similar in stature to Obama's educational status. I would have had a long row to hoe to get a tenured position there, but Obama was thought to be qualified to teach at a Top Five law school. Uh-huh.
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