Updated: June 22, 2011 2:14AM
During the Bush administration, when the Justice Department’s Office of Legal Counsel got into the habit of rationalizing whatever the president wanted to do, Indiana University law professor Dawn Johnsen dreamed of an OLC that was willing to “say no to the president.”
It turns out we have such an OLC now. Unfortunately, as Barack Obama’s defense of his unauthorized war in Libya shows, we do not have a president who is willing to take no for an answer.
While running for president, Obama criticized George W. Bush’s lawless unilateralism in areas such as torture, warrantless surveillance and detention of terrorism suspects. “The law is not subject to the whims of stubborn rulers,” he declared in 2007, condemning “unchecked presidential power” and promising in his administration there would be “no more ignoring the law when it is inconvenient.”
Obama’s nomination of Johnsen to head the OLC, although ultimately blocked by Senate Republicans, was consistent with this commitment; his overreaching responses to threats ranging from terrorism to failing auto companies were not. Last week, by rejecting the OLC’s advice concerning his three-month-old intervention in Libya’s civil war, Obama sent the clearest signal yet that he is no more inclined than his predecessor to obey the law.
Under the War Powers Act, a president who introduces U.S. armed forces into “hostilities” without a declaration of war must begin withdrawing those forces within 60 days unless Congress authorizes their deployment. Hence the OLC, backed by Attorney General Eric Holder and Defense Department General Counsel Jeh Johnson, told Obama he needed congressional permission to continue participating in NATO operations against Libyan dictator Moammar Gadhafi’s forces.
While the president can override the OLC’s advice, that rarely happens. “Under normal circumstances,” the New York Times noted, “the office’s interpretation of the law is legally binding on the executive branch.” In this case, rather than follow the usual procedure of having the OLC solicit opinions from different departments and determine which best comported with the law, Obama considered the office’s position along with others more congenial to the course of action he had already chosen.
Obama preferred the advice of White House Counsel Robert Bauer and State Department legal adviser Harold Koh, who argued that American involvement in Libya, which includes bombing air defenses and firing missiles from drone aircraft as well as providing intelligence and refueling services, does not amount to participating in “hostilities.”
A report that the Obama administration sent Congress says, “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.”
All that is irrelevant, because the War Powers Act says nothing about those criteria. According to the administration’s logic, Congress has no say over the president’s use of the armed forces as long as it does not involve boots on the ground or a serious risk of U.S. casualties — a gaping exception to the legislative branch’s war powers in an era of increasingly automated and long-distance military action. As Harvard law professor Jack Goldsmith, a former head of the OLC, told the Times, “The administration’s theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution’s time limits.”
This interpretation is so absurd that both House Speaker John Boehner (R-Ohio), who has criticized the war in Libya, and Senate Majority Whip Richard Durbin, (D-Ill.), who supports a resolution approving U.S. involvement, say it fails the “straight-face test.” It is so absurd that the New York Times and the Washington Post, both of which strongly support the war, have editorialized against the Obama administration’s “sophistry” and “evasion of its legal duties.”
It is now up to Congress to enforce those duties by defunding the president’s illegal and unnecessary war.