The NY Times reports that on the question of Libya and the War Powers Act Obama threw the normal process for gathering legal advice overboard and went shopping for opinions that met his requirements:
2 Top Lawyers Lost to Obama in Libya War Policy Debate
By CHARLIE SAVAGE
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. 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.
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.
So the OLC and the Pentagon came up with the wrong answer, but Hillary delivered at State, so it was all good for Barack.
Jack Goldsmith, who headed the OLC under Bush, has more thoughts on the surprise from State at his blog:
It is interesting and unusual enough that President Obama, of all people, would take an aggressive view of his war authorities and interpret the WPR very narrowly. But the lawyers he relied on to reach this conclusion make the situation even more interesting and unusual. I discount the legal input of the White House Counsel; Bob Bauer is a smart man but neither he nor his office is expert in war powers or situated to offer thorough legal advice on the issue. Legal Advisor Harold Koh, by contrast, spent his entire academic career studying andwriting about presidential war powers, including the WPR. Based on this academic record, one would not have expected Koh to push an unusually narrow interpretation of the WPR. Nor would one have expected him to have supported the original constitutional justification for unilateral presidential intervention in Libya. To get a flavor of what one might have expected, consider what Koh’s former colleague Bruce Ackerman said in support of his nomination to lead State-L:
This is the real importance of the Koh nomination. President Obama has selected one of the few lawyers who probed deeply into the constitutional implications of presidential unilateralism and how it might be controlled. Koh would be taking his position as legal adviser at one of the rare moments when it might be politically possible to consider a National Security Charter that aims to restore an effective system of checks and balances.
This is not how things have worked out. One wonders why. One possibility is that Koh has a client, the Secretary of State, who is committed to the Libya intervention, and he is serving his client faithfully. Another possibility is that Koh’s commitments to humanitarian intervention and the “responsibility to protect” outweigh his commitment to his academic vision of presidential war powers. I certainly do not believe that Koh’s academic views should control his advice and judgment during his government service. Nor do I think that his academic writings addressed the precise issue under the WPR that he is now advocating in the government. But for a quarter century before heading up State-L, Koh was the leading and most vocal academic critic of presidential unilateralism in war, and a tireless advocate for institutional cooperation between the political branches in war decisions. I am thus genuinely surprised, as many people are, by his current stance.
Well, a lot of positions advocated during the reign of BushCo have unexpectedly been put aside now that a Democrat is in the Whte House.