Saturday, June 18, 2011

"Hostilities" and the War Powers Act

The New York Times reports:

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.
Yale law professor Jack Balkin blogs that the OLC is not a constitutional body and presidents may legally set up deliberative procedures as they see fit.
However, there are good reasons why these practices and customs were implemented. They were designed to prevent Presidents from treating their lawyers like so many guests at a cocktail party that they can causally survey in order to pick out their friends. These procedures exist because there is almost always a prominent and skillful lawyer in the Administration who will tell the President pretty much what he wants to hear.

The OLC's procedures are designed to prevent precisely this sort of cherry picking. If the President can simply canvas the opinions of enough such lawyers he is not restrained very much by the law. Indeed, it is particularly relevant here that one of the lawyers who supported the President's position on Libya is the White House Counsel. The White House Counsel's office, as it has developed over time, is much closer to the political arm of the President's operations, and much much less likely ever to cross the President. White House Counsels who do not facilitate the President's political goals do not remain long as White House Counsels. Not surprisingly, the White House Counsel's office does not have the same academic or judicious traditions of the OLC. Whether or not one thinks that the OLC is likely to say yes to the President simply because it sits in the Justice Department, the White House Counsel's office is likely to be ten times more flexible.

On Saturday, a spokesman for Boehner said the New York Times report “reinforces the need for the White House to answer the questions that Congress and the American people have about our involvement in Libya.”

But spokesman Michael Steel was noncommittal about Boehner’s next move. “That’s something we’ll discuss” with GOP legislators, he said.

The two party leaders in the Senate, Majority Leader Harry M. Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) were not available for comment on Libya on Saturday.

One option would be to hold a vote to approve or disapprove of the Libyan campaign, even if Obama has said Congress’s approval isn’t necessary.

Last week, two of Obama’s strongest allies on Libya — Sen. John McCain (R-Ariz.) and Sen. Richard J. Durbin (D-Ill.) — said they wanted such a vote. Durbin last week teamed with Sen. Benjamin L. Cardin (D-Md.) and introduced a resolution that would support the president’s Libyan actions but would set an end date of Dec. 30 and bar the introduction of U.S. ground troops, something Obama has said repeatedly he does not plan to do.

Another would be to seek to cut off funding for the operation. Rep. Dennis J. Kucinich (D-Ohio) said Saturday that he would introduce such a measure this week, when the House plans to consider a bill to fund the Pentagon.

That has happened before. In 1973, for instance, after a cease-fire had been agreed to in Vietnam, Congress voted to prohibit money being used to reintroduce troops into Southeast Asia.

In many cases, Congress has been leery about withdrawing money for troops already in harm’s way. That might still be true here, even though U.S. forces are not on the ground in Libya and face relatively little danger in the air.