War Counsel

Obama shops for Libya advice that lets him ignore the law.

During the Bush administration, when the Justice Department's Office of Legal Counsel (OLC) 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 that under 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 Muammar al-Qaddafi'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, since 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.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate Inc.

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  • Mike E||

    So where are those war protesters... I mean, kinetic action protesters?

  • Paleo||

    Drawing unemployment?

  • Paleo||

    Can't afford the trip in this economy?

  • Team Blue||

    It's okay when our guy does it!

  • War Protester||

    We're still here! Bush lied, people died!

  • War Protester, Jr.||

    I'm already against the next war!

  • MNG||

  • WTF||

    Pretty damn weak numbers compared to pre-2009 war-protesting.

  • MNG||

    Conceded. But as I said below, it makes sense given most Americans see us drawing down in Iraq, which was the unpopular war. Libya seems different to most people as it's a much smaller effort and Afghanistan has always been much more popular.

  • WTF||

    Do you honestly think the left would be so quiet if a republican president was in office right now?

  • TANSTAAFL||

    "Do you honestly think the left would be so quiet if a republican president was in office right now?"

    Arrow meet bullseye

  • Huh?||

    Popular?

  • [John]ny [Long]torso||

    A Progressive President is the law. Their own beliefs have just come back to bite them in the ass.

  • Paleo||

    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."

    Let Mexico bomb U.S. air defenses and fire missiles across the Rio Grande and see if Obama doesn't consider that "participating in hostilities."

  • Number 2||

    So that I am clear, under Obama's theory, the attacks of 9.11 were not hostilities because they did not involve boots on the ground, sustained military action, or serious risk of casualties to the attackers other than those who had volunteered for suicide.

    In fact, under his theory, an unprovoked nuclear attack from the old Soviet Union would not have constituted hostilities.

  • sarcasmic||

    Obama is a liberal, so it doesn't have to go both ways.
    If anyone else did what he is doing then it would indeed be considered "hostilities", but since he's a liberal it doesn't count.

  • MNG||

    Has Obama ever argued that 9/11 was not an attack on the US? I think he was always for retaliation for 9/11 (Afghanistan) but just against Iraq as he argued it was not related. However, you can't square the Libya action with some of his quotes about only going to war when directly attacked.

  • sarcasmic||

    9/11 does not fit into Obama's definition of "hostilities".

    What right do we have to retaliate against something that was not a hostile act?

    He should be pulling out of Iraq and Afghanistan since the event that brought us there does not fit his definition of "hostilities".

  • MNG||

    Oh, I see, I thought you were saying that Obama did not think 9/11 was an attack on the US, but you are talking about Obama's goofy definition of Libya as not a war to escape the WPA. Yeah, it's an incredible (in the old sense of the word) argument, one of the dumbest from a long list of dumb ones his administration has put forward.

  • MNG||

    I think his argument that WPA doesn't apply because they are in a support role is even more relevant and goofier. Especially early on it was clear we were doing the great majority of the effort.

  • sarcasmic||

    You're right.

    I made the mistake of applying Obama's definition of "hostilities" equally to both 9/11 and Libya.
    I forgot that it doesn't go both ways.
    It's not "hostilities" when he does it, and it is "hostilities" when someone else does it.

    By bad.

    Sorry.

  • Cantankerous Old Man||

    "You're right..My bad...Sorry."

    Get a room you two!

    We don't apologize or make nice in here!

  • ||

    ""9/11 does not fit into Obama's definition of "hostilities".""

    I thought his definition of hostilities was us getting shot at/attacked. No?

  • ||

    But if Libya is not a war, it is kind of hard to see how 9-11 was. Someone else made an astute point. Suppose Al Quada got a hold of a few hundred cruise missiles and rained them down on Washington. Would anyone claim that we were not at war? And if that is war, how is the US doing the same thing to Tripoli not?

  • Almanian Whoopie Goldberg||

    Well, Libya's not a WAR war, so it's all good.

  • ||

    Because WE'RE AMERICANS (Fuck Yeah!) and when we rain missiles down upon your head, it's because you deserved it!

  • ||

    ""Suppose Al Quada got a hold of a few hundred cruise missiles and rained them down on Washington. Would anyone claim that we were not at war?""

    We would be since we were getting shot at, but AQ wouldn't be at war unless we returned fire.

    I think dictionaries burst into flames when they enter the Whitehouse.

  • TANSTAAFL||

    No, no, no. you don't get it. It is like this, it isn't a war if we are beating down a poor third world country that has no chance at defending itself.

    Got it?

  • TANSTAAFL||

    ...and I mean poor as in economically, not sympathy - Ghaddaffi IS a brutal tyrannical asshole

  • ||

    Or better yet, suppose we went to war with Canada. And during this war the Chinese pulled up off our coast and started firing missiles and providing logistical and intel support. Would they not be at war with the US?

  • Byron||

    If a war with Canada lasts more than an hour, we're doing it wrong.

  • Mike M.||

    In fact, under his theory, an unprovoked nuclear attack from the old Soviet Union would not have constituted hostilities.

    Outstanding point sir. Who knew that nuking Hiroshima and Nagasaki wasn't really a hostile act?

  • Nathan Hale||

    And if i understand correctly, that "providing intelligence" thing can get you into trouble.

  • Auntie Semitic||

    Yeah, but only once! Nyuk, nyuk.

  • JD the Elder||

    Across the Rio Grande, hell - if bombing Libya is "not hostilities", I should be able to fire mortars at the White House. According to Obama, that's not the kind of thing subject to any legal rules.

  • Barack Obama||

    ""The law is not subject to the whims of stubborn rulers," he declared in 2007, condemning "unchecked presidential power" and promising that under his administration there would be "no more ignoring the law when it is inconvenient.""

    Jacob, the 2008 campaign is over...

  • WTF||

    Obama sent the clearest signal yet that he is no more inclined than his predecessor to obey the law.

    I would think he is actually less inclined - at least Bush had the decency to get congressional authorization.

  • sarcasmic||

    Rulers do not need authorization.

  • rather||

    When are libertarians going to get that they will play the same games if they are ever allowed out of the kiddie pool?

    Political reality is a drowning man making deals with God as as he comes to shore, the closer to safety....

  • ­||

    As long as liberals use that exact same rhetoric when "the Lightworker" runs for reelection, I'm cool with it.

  • Almanian||

    No chance libertardians will ever be allowed out of the "kiddie pool", so the point is moot.

  • ||

    This bullshit is adult behavior? On which fucking planet?

  • ||

    I hope Obama at least left the anti-war left cab fair on the end table after taking their virtue and integrity.

  • MNG||

    Given this war effort is a much smaller one than the one in Iraq people protested it doesn't shock me that there is less protest response. If you go to the anti-war group's cites they are still opposed and protesting, and the hard-core anti-war left pols like Kucinich are working against it.

  • ||

    But doesn't following Bush's plan in Iraq and escalating in Afghanistan count for something? Ending those wars was a "fierce moral imperative" until about 21 January 2009.

  • MNG||

    He was always for drawing down in Iraq and focusing on Afghanistan (remember the Dem talking point that Bush "took his eye off the ball with Iraq), so it's hard to get him on Afghanistan. He clearly hasn't lived up to some of his promises about ending the war in Iraq but the public sees that 1. he didn't start that one and 2. they are drawing down and he seems to largely get a pass on that one. The hardcore protestors still protest him over that.

  • ||

    Sure he was. But that doesn't excuse him. And a lot more than just the "hard core protestors" protested Bush for pretty much the same thing.

    Spin it all you want. But when the anti war movement ramps up again and starts protesting a Republican President in 2013, people are going laugh at them. The mask will be off.

    I guess every future President owes Obama a debt. He has completely ended any moral legitimacy of the American anti-war movement.

  • MNG||

    I don't know what to tell you. Afghanistan was always more popular and people see us drawing down in Iraq. It's not crazy that protests dwindle as we draw down.

  • ||

    The anti-war movement started immediately after 9-11. And they always protested Afghanistan. Hard to believe they wouldn't be having a cow over Libya if McCain were doing it.

  • WTF||

    But when the anti war movement ramps up again and starts protesting a Republican President in 2013, people are going laugh at them. The mask will be off.

    I'm not so sure. The American public has a short memory, and the MSM will go back to covering the protests and emphasizing their importance and moral legitimacy. I wouldn't be surprised if they resume coverage of Cindy Sheehan, after discarding her when Obama got elected.

  • ||

    People will remember to things

    1. We were at war under Obama
    2. You never heard anything about the anti-war movement

    When they start marching on the Pentagon and tearing shit up again, people are going to see them for what they are.

  • ||

    And at that point, state sovereignty, or even secessionists, should ramp up and tell the federales to suck dick, and also clean up their own houses by eliminating non-constitutionalists from office. Otherwise, shit's just going to revert to back in a few years.

  • ||

    """""It is now up to Congress to enforce those duties by defunding the president's illegal and unnecessary war."""""

    How about following that with an initiation of impeachment proceedings? This fucking despot's committed, and continues to commit, treason, ceaselessly violating the very constitution that grants his position and powers legitimacy, and he hasn't faced any consequences for it. Where the fuck are the Lee Harvey Oswalds of the world when you need them the most?

    I swear to god, if the next President doesn't abolish 95% of the federal government and fails to conform to constitutional standards for executive power, I'm just going to lose all faith and assume that the Republic is dead, period.

  • MNG||

    One problem is that conservatives and Republicans have been arguing for a long time that the WPA is unconstitutional and Presidents don't have to follow it. It's less than clear that in such a case not following such a law warrants an impeachment.

  • MNG||

    House Speaker John Boehner (R-Ohio) warned President Barack Obama on Tuesday that he’ll be in violation of the War Powers Act if he doesn’t seek authorization for the Libya mission this week, but Boehner has questioned the law’s constitutionality in the past and even voted to repeal the law back in 1995.

    “The president of the United States is, and should remain, the chief architect of America’s foreign policy and the commander-in-chief of our armed forces,” Boehner said in a 1999 press release
    http://www.politico.com/news/s.....z1Q0YXswak

  • ||

    Boehner's a dipshit -- true republicans should be appalled at how many big, sweaty balls he sucks at most things he does

  • MNG||

    The GOP hate for WPA goes waaaay back, when Cheney and Rummie et al., were Congresscritters.

  • ||

    Same shit with Cheney and his crew; their policies and ideologies are so god-awful, opposition to the principles behind the WPA is the least of their dipshit positions

  • WTF||

    The Speaker of the House is a hypocritical fuckstick. In other news, dog bites man.

  • MNG||

    "The Speaker of the House is a hypocritical fuckstick."

    I'm pretty sure its in the job description for the position.

  • ||

    Hey! That's genderist!

  • JoshInHB||

    So it's ok to ignore all laws that some Congress critter voted against at some point in the past.

    Cool.

  • MNG||

    Hearing voices in your head again Josh? Might want to take your meds, Because nobody has said that.

  • Almanian||

    "It's ok to ignore all laws that some Congress critter voted against at some point in the past." Thus Quoth Almanian

    YEAH, I SAID IT! WHAT NOW, BITCHES?

  • sarcasmic||

    Close. It's OK for a Democrat to ignore a law, especially if a Republican voted to repeal it in the past.

  • ||

    I've heard this before and I don't know what they don't like about it. Is it just because it interferes with their plans which is weird since Bush did get congressional approval. I also heard Charles Krauthammer say he didn't like it. Could someone explain why they don't like it.

  • Mensan||

    It is now up to Congress to enforce those duties by defunding the president's illegal and unnecessary war.

    "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

    I think it's pretty clear what Congress is supposed to do in this situation.

  • ||

    If they weren't (i) political gamers and/or (ii) colossal pussies, maybe they'd do something about it

  • Jess Asken||

    If Congress members do not take that clear step, are they also guilty of high Crimes?

  • ||

    They'd be considerably lower on the scale of severity and responsibility, but I'd say yes -- they're violating their duties by allowing a treasonous usurper to remain in office and in power

  • Old Lady||

    It's high Crimes and Misdemeanors all the way down.

  • Towelie||

    You say somethin' about gettin' high?

  • ||

    So what are we supposed to do when the president acts criminally and those who are supposed to police him, Congress, acts criminally how are we to enforce the law without having to wait for the next election. I have one idea but ideas have become criminal in this country.

  • WTF||

    I think it's pretty clear what Congress is supposed to do in this situation.

    Democrats will never vote to impeach a democrat president.
    Republicans don't want to hamstring a future republican president by setting a precedent.

  • Mensan||

    That's why I said "... supposed to do ... ." I have no illusions that it will actually happen.

  • Minnesotan||

    Couldn't they at least point it out by holding a press conference and saying, "A lotta guys might impeach ...."?

  • creech||

    The local congresscritter has an op-ed in today's paper saying he will vote for an even "stronger resolution" if Obama continues to stonewall. Ooooooh, I'll bet Obama is shaking over that one. More likely laughing his ass off and mentally toting up the huge speaking fees he'll get in the future when he's on the speaker trail denouncing President Huntsman's WPA violations.

  • MNG||

    "Crimes and Misdemeanors"

    Best Woody Allen movie, ever.

  • ||

    Is ignoring the Constitution a criminal offence? Can someone point to the statute that says so?

    I'm pretty sure that when a cop violates your rights it's a civil issue, not criminal issue. No?

  • ||

    On a slightly unrelated note, trolling the Obamatrons on HuffPo and the NYT with pictures like these -- http://www.p2fe.com/Confederate_flags.jpg -- is pretty great fun

  • Tim||

    What scare's me is that sexting your wiener around the country gets you gone faster than Quaddaffi, the target of NATO.

  • ||

    What's scary about it? Our system works. NATO is what's broken.

  • Tim||

    The only way to know is if Colonel Crazy tweets his dink to Obama.

  • Mensan||

    What scare's me is that sexting your wiener around the country gets you gone faster than Quaddaffi, the target of NATO blatantly and insolently violating the law.

  • Tim||

    This guy should work for TSA:

    The court papers allege that, during the traffic stop, O’Connor at one point began screaming at Ivy and later made her undergo a second X-ray search for drugs in her vaginal area at Fletcher Allen Health Care after telling a hospital doctor he had the authority to order such a search.

    “O’Connor’s unprofessional and erratic behavior terrified plaintiff and she worried about what he might do next,” the lawsuit states. “Plaintiff formed the belief that O’Connor was going to injure plaintiff or worse.”

    No drugs were found following the hospital search, and Ivy was not charged criminally in connection with the traffic stop."

    http://www.burlingtonfreepress.....violations

  • Almanian||

    But did they find a Snuke? Cause a Snuke could threaten national security, so I'm glad this person was exercising their authoritah to check for stuff like that in her vajayjay region.

  • ||

    I would have much preferred if he had started sexually assaulting her/groping her groin, among other things, and she shot him in self-defense. It would also have helped if she was attractive, as it would reinforce the likelihood of molestation. That would have been a much better outcome.

  • Ray||

    Those Nobel folks sure know how to pick 'em.

  • ||

    It's the Nobel we hope you will not be like the other guy prize.

    Suckers.

  • tadcf||

    When are conservatives going to recognize the importance of was in Muslim countries for control of their natural resources. Many liberals have.

  • tadcf||

    change to above comment:

    change word 'was' to 'war'

  • McCain||

    Obama's my boy.

  • Don Obama ||

    Dawn Johnsen just isn't a wartime consigliere.

  • ||

    It's not impeachment. It's kinetic ejection action.

  • ||

    Dawn Joghnsen = Don Johnson -- lolol

  • Neu Mejican||

    http://www.rollcall.com/news/g.....613-1.html

    “The War Powers Act is unconstitutional and not worth the paper it is written on,” Sen. Lindsey Graham (R-S.C.) said on NBC’s “Meet the Press.” “The president needs to step up his game in Libya, but Congress should sort of shut up and not empower Gadhafi.”

    This is a case of the legislative branch giving away its power as much as the executive taking it.

  • ||

    It always has been. However, even if the WPA is unconstitutional in part, engaging in warfare without congressional authorization is clearly unconstitutional when it's not a defensive action.

  • Apostate Jew||

    I am a little surprised that Congress is not standing up for its prerogatives.

    Neither party seems to want to challenge the President and the Congress as a whole seems to have no desire to assert its powers. Very strange.

  • ||

    It's been a problem for some time, and, given that our entire system is based on the exercise of checks against other branches, a disturbing trend.

  • sven||

    What warfare? Robots droppin' bombs 'n shit ain't no warfare. No one would watch a Spielberg movie about that.

  • ||

    "Even if the WPA is unconstitutional in part..."

    ... it has a severability clause, so the rest remains in force. Everyone should read the law. When I did, I realized that Obama's Libyan Adventure was illegal from the start, not just after the 60 or 90 days. Under WPA, the President has no authority to place troops into hostilities (and this means not just participating directly, but advising, coordinating with, and supporting foreign forces) UNLESS the Congress says so OR we are attacked first. Since nothing of the sort happened before Libya, the President had no 60-90 day grace period. The operation is and always has been completely illegal.

    In a just world, the longer this atrocity continued, the worse things would be for Mr. Obama. But of course, in the real grown-up world, the longer our "kinetic action" goes on, the more that craven and toadying members of Congress will rush to provide the President with a figleaf of legitimacy (see McCain and Kerry's latest joke).

  • ||

    Just because a person thinks a law is unconstitutional does not give that person the right to ignor the law. just try that with the IRS and see what happens.

  • ||

    Taxation isn't unconstitutional, so one would be wrong to think it is.

  • rst||

    Sullum links to section 1543 and seems to acknowledge that Obama had the legal authority to attack Libya for 60 days.

    But doesn't section 1541 make it abundantly clear that he didn't have that authority?

    I know I've harped on this before, but I'm still surprised that the entire media consuming world seems to be convinced that the issue here is the 60 day time limit, and not the paragraph (c) restrictions that never allowed for it in the first place.

  • ||

    Seconded.

  • ||

    Inadvertently but nevertheless sincerely Thirded in my post of 6.23.11 @ 1:55PM (EST), which I wrote before seeing this part of the thread. Read the law, folks: 50 U.S.C. 1541-1548.

  • Neu Mejican||

    Indeed. Although this is where I think it gets complicated by our relationship with NATO. As we have a treaty (also the law of the land, like the constitution, and the WPr) that indicates we will support NATO actions, there may be some wiggle room here. (Maybe...if you squint hard enough).

    Of course, the NATO treaty itself is not designed for this kind of action, so that ends up being a pretty weak argument for the legitimacy of the action.

    In the end, under the WPr, Obama has acted, presented information to the Congress, they failed to pass any legislation that would support this continuing. We should be withdrawn by this point.

  • Caitlin L. Byrd||

    As Illinois State Sen. Barack Obama said in 2002 in opposing the war in Iraq, "an invasion of Iraq without a clear rationale and without strong
    international support will only fan the flames of the Middle East.” Thus far the only “clear rationale” the Obama administration has reluctantly offered to its people, concerning its actions (which seem to be belligerently set on fanning
    the flames as rigorously as possible) is: “The U.S. is in charge. 911 triggered our inferiority complex and we will bully the world until we feel better.”

    Remember the bully from grade school that made you tremble? He gave your friends swirlies, you found yourself suffocating in the dumpster a few times, and that girl from the other class – the one who was always hungry – that bully regularly stole her lunch money. Does this sound eerily familiar? Are you reminiscing? Or
    do you see this happening right before your eyes? Because I am here to tell you that it is happening right now.

    Obama wants to assert U.S. military strength throughout the world. After 911 he saw his chance to exercise whatever bullying power he could get away with, and he has gotten away with a lot. Are the little children sick of being bullied? Are
    the people ready to stand up to the bully and tell him we are done being beaten, robbed, and blatantly
    disrespected?

    Caitlin Byrd
    Arlington, VA

  • Nobel War Laureate Obama||

    That really was me and not the Saturday Night Live guy giving the speech. Yes? Getting hard to tell the difference.

  • ||

    Apparently Mr. "I'm against icky unilateral action" and "I'm a citizen of the world" thinks killing foreigners by the truckloads does not amount to hostilities as long as they have no reasonable chance of killing you back.

  • قبلة الوداع||

    thank u

  • قبلة الوداع||

    ThaNk U

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