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. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
Saturday, June 18, 2011
You just have to laugh at this stuff. The Obama administration is taking to new heights its argument that American involvement in the Libyan Air War is not the sort of bellicose behavior that will run afoul of the War Powers Act. The NY Times reports that Obama's own lawyers told him the US was at war with Libya causing him to ... seek out new lawyers who would tell him what he wants to hear.
Just to add to the hilarity, Koh was one of the leading lights of the unitary executive critique that was so fashionable during the dread Bush Administration. Now he's making goofy hair-splitting arguments about how we are warring but are not "at war." Ridiculous. Maybe Americans aren't looking through the cross-hairs, but we are certainly providing logistical and material support that is much more important to the war effort than whomever is at the tip of the spear. As others have pointed out, if there was a country attacking the US in an effort to force Obama from office, and there was a third country offering material support (and even hovering off-shore) is there any doubt we would consider ourselves to be at war with them?
The worst of it is that this was all so unnecessary. The original sin of the Libyan Intervention was not going in without congressional approval. It was the inexcusable two-week delay when the rebels - remember them? - were at the gates of Tripoli and Qaddafi was on the ropes. A quick intervention then would have toppled the Mad Dog. Instead, Obama's dithering saved him, and now we are left with a bloody stalemate abroad and tortured definitions of "war" at home.