The Spectacle Blog

Obama and His Lawyers

By on 6.18.11 | 1:13PM

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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