Over the weekend, the New York Times dropped what should have been a devastating expose: President Obama has willfully ignored specific legal advice from lawyers at the Pentagon and his own administration's Office of Legal Counsel regarding the US military's involvement in Libya and the War Powers Act:
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 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 , 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.
Hot Air's Allahpundit contextualizes the president's actions -- which, as of today's White House press briefing, Obama "stands by:"
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.
This story underscores two disturbing realities. First, the mainstream media is irreparably slanted in its coverage and story selection. Hypothetical: Let's say President Bush had conspicuously dismissed typically-binding legal analyses, opting instead to stack the deck in favor of cherry-picked opinions, all in an effort to justify carrying on a war he'd started without Congress' consideration, let alone approval. Would the media treat such an audacious power play as anything other than a Constitutional crisis of the highest order? He's trampling on the Constitution! Imperial presidency! Lawlessness! Separation of powers! But this president is named Barack Obama, and he's a Democrat. How many of you had even heard about this story prior to reading either this post? Sure, several MSM outlets have covered it -- and kudos to the Times for printing it -- but my point is about scale, tone, and amplification.
Second, forget the media for a moment and consider the precedent Obama is embracing. According to his reading of the law, a president can initiate hostilities against a foreign nation, deploy American troops and resources abroad for months, hand off operations to a virtually wholly-owned US subidiary (NATO), then have his political team issue a ruling that the hostilities aren't really hostilities, thus circumventing any checks from the people's branch. And is this what "non hostilities" look like? No wonder prominent anti-war Congressmen are longing for the good old days of George Bush. Even if one favors robust executive authority when it comes to these matters, Obama's slipperyness and hypocrisy is quite something to behold.
Senator Joe Biden famously said that if President Bush attacked Iran in any way without explicit Congressional permission, it would be grounds for impeachment. Ahem. Congress doesn't have to go quite that far in this case, but it would be swell if the legislative branch would assert itself just a teensy bit here. But will it? Perhaps:
Lawmakers question the legality of President Barack Obama's continued use of the U.S. military in Libya without the approval of Congress. House of Representatives Speaker John Boehner, the top Republican in Congress, last week said Congress could cut funding for U.S. military involvement in Libya, ratcheting up pressure on Obama. Gates, who departs as Pentagon chief this month after serving in the post under one Democratic and one Republican president, noted that earlier during his stint in the job Congress also threatened to cut off funding for the Iraq war.
"Frankly, I think cutting off funding in the middle of a military operation when we have people engaged is always a mistake," Gates told "Fox News Sunday."
With all (very) due respect to Sec. Gates, the Iraq war was authorized by bipartisan majorities in both houses of Congress. This war time- and scope- limited kinetic military action was not. Indeed, there was never a vote of any sort on it. And if the White House doesn't believe the United States is involved in "hostilities" in Libya, why would cutting off funding be so unconscionable?
More than a few respected conservatives have strongly urged Congress not to cut off funding to the Libya operation. Click through, and you'll find that several of their points are compelling. But absent a clear demonstration of political muscle flexing by Congress, wouldn't inaction basically allow the president's legal machinations to slide by, unchallenged? Is there another way? Perhaps Rep. Issa could squeeze another set of hearings onto the docket?
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