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Top Lawyers Lost to Obama in Libya War Policy Debate
By
CHARLIE SAVAGE, June 17, 2011
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DO
50 USCS §
1544 Congressional action
(b) … Within
sixty calendar days after a report is submitted … pursuant to section 4(a)(1) [50
USCS § 1543(a)(1)] … the President
shall terminate any use of United States Armed Forces with respect to which
such report was submitted .. unless the Congress (1) … has enacted a specific
authorization for such use of United States Armed Forces,
Question
presented
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Whether
the United States military’s activities in the NATO-led air war amounted to
“hostilities” for the purpose of the War Powers Resolution
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“Yet
we’ve got drone attacks under
way. We’re spending $10 million a day. We’re part of an effort to drop bombs on
Qaddafi’s compounds.”
Mr.
Obama decided that he had the legal authority to continue American military
participation in the air war in Libya without
Congressional authorization
the lack of ground forces, the supporting role the United States was playing
in a multilateral effort to fulfill a United Nations resolution.
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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.
A
White House spokesman, Eric Schultz, said there had been “a full airing of
views within the administration and a robust process” that led Mr. Obama to his
view that the Libya campaign was not covered by a provision of the War Powers
Resolution that requires presidents to halt unauthorized hostilities after 60
days.
Still,
the disclosure that key figures on the administration’s legal team disagreed
with Mr. Obama’s legal view could fuel restiveness in Congress, where lawmakers
from both parties this week strongly criticized the White House’s contention
that the president could continue the Libya campaign without their
authorization because the campaign was not “hostilities.”
The
White House unveiled its interpretation of the War Powers Resolution in a
package about Libya it sent to Congress late Wednesday. On Thursday, the House
speaker, John A. Boehner, Republican of Ohio, demanded to know whether the
Office of Legal Counsel had agreed.
“The
administration gave its opinion on the War Powers Resolution, but it didn’t
answer the questions in my letter as to whether the Office of Legal Counsel
agrees with them,” he said. “The White House says there are no hostilities
taking place. Yet we’ve got drone attacks under
way. We’re spending $10 million a day. We’re part of an effort to drop bombs on
Qaddafi’s compounds. It just doesn’t pass the straight-face test, in my view,
that we’re not in the midst of hostilities.”
A
sticking point for some skeptics was whether any mission that included firing
missiles from drone aircraft could be portrayed as not amounting to
hostilities.
As
the May 20 deadline approached, Mr. Johnson advocated stopping the drone
strikes as a way to bolster the view that the remaining activities in support
of NATO allies were not subject to the deadline, officials said. But Mr. Obama
ultimately decided that there was no legal requirement to change anything about
the military mission.
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.
The
theory Mr. Obama embraced holds that American forces have not been in
“hostilities” as envisioned by the War Powers Resolution at least since early
April, when NATO took over the responsibility for the no-fly zone and the
United States shifted to a supporting role providing refueling assistance and
surveillance — although remotely piloted American drones are still periodically
firing missiles.
The
administration has also emphasized that there are no troops on the ground, that
Libyan forces are unable to fire at them meaningfully and that the military
mission is constrained from escalating by a United Nations Security Council
resolution.
