War Counsel

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

During George W. Bush’s 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, we do not have a president who is willing to take no for an answer.

While running for president, Barack Obama criticized 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. In June, by rejecting the OLC’s advice concerning his 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. After that deadline passed, the OLC, backed by Attorney General Eric Holder and Defense Department General Counsel Jeh Johnson, told Obama he needed congressional permission to continue the intervention.

While the president can override the OLC’s advice, that rarely happens. 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 that were 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.” The Obama administration explained its position in a June 15 report to Congress: “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 New York 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 sponsored a resolution approving U.S. involvement, said 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 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. 

Senior Editor Jacob Sullum is a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Fist of Etiquette||

    While running for president, Barack Obama criticized Bush’s lawless unilateralism in areas such as torture, warrantless surveillance, and detention of terrorism suspects.

    We all that know candidate Obama would have stern words for President Obama. Oh, wait. He's candidate Obama again! Ooo, this is gonna be good.

  • DJF||

    I must point out that Obama did not engage in "lawless unilateralism" when it came to Libya. He waited to bomb until he got permission from those shinning stars of democracy, the UN and the Arab League" and then he bombed. So he was not unilateral, he just preferred the permission of foreign dictators to asking the US Congress or the American public.

  • ||

    So, still "lawless" but with more multilateral goodness inside.

  • Rich||

    he just preferred the permission of foreign dictators to asking the US Congress or the American public

    I imagine he rationalized this by believing that the foreign dictators would be more affected by his kinetic operation than would Congress or the American public.

  • ||

    But its says Congress shall have the power to declare wars in my copy of the Constitution. Is there a court opinion on "Congress" meaning things other than the House and the Senate?

  • ||

    Another (antique) meaning of "congress" is "sexual intercourse", so one can assume that the House and Senate would just bend over and take it.

  • ||

    So, by analogy, "Congress" represents an orgy of warfare involving multiple government bodies, multinational organizations, and other groups?

  • ||

    It's a living, breathing document.

  • ||

    He waited to bomb until he got permission from those shinning stars of democracy, the UN and the Arab League and then he bombed.

    I'm too lazy to Google it, but I thought that Obama had permission of NATO and "support" of the Arab League (minus Quadaffi, obviously) but not approval from the UN.

  • ||

    None of which are "Congress."

  • MJ||

    Obama has been this since he was put into office. After all, he insisted the health insurance mandate did not count as a tax (because it would break his no new taxes on the lower classes pledge), but when in challenged in court said it was a tax because that was easier to rationalize as a legitimate function of government. The only thing that was mildly surprising is that Obama would engage in such mendaciousness with regards to military action, but that's only a surprise if you forget how the Dems acted when they held the White House under Clinton.

  • ||

    And yet they wonder why there is such a huge gulf between normal people and the wankers in D.C. The blatant disregard of the plain meaning of words and the open hostility toward the truth arouse deep contempt in anybody with principles.

  • Rich||

    This. "We'll deem it true."

    Great photo of the CiC ignoring the salute. Caption contest?: "I can't HEAR you!"

  • jacob the barbarian||

    I got a barrel of feathers, who has the tar?

  • ||

    I brought this up before in the context of Solyandra. You have to remember these guys are from Chicago. They have never been held accountable in their lives. If you are a member of the Chicago machine you can tell people that black is white and to fuck off if they don't like it. And that is exactly the way this White House operates.

  • Suki||

    you can tell people that black is white and to fuck off if they don't like it
    RACIST!

  • ||

    The picture makes it look like President Obama is racking that Marine's ass. Except the Marine has it all over Obama for being shaped-up.

  • ||

    I think that it looks like he is giving that Marine a hernia check.

  • Realist||

    "Obama shops for Libya advice that lets him ignore the law."
    No foolin'....he's just another jackoff!

  • ||

    Speaking of the Chicago Way, does anyone expect the Bureau of Labor Statistics to be free of influence from Obama's political advisers when BLS reports the unemployent rate in August & September of 2012? I predict that U3 unemployment will drop big-time for both months, giving Obama talking points for the debates. It's so obvious, it's ridiculous. Some budding reporter/blogger could build a career if a whistle-blower would blow the whistle on BLS subterfuge, but it would take a very deep mole in BLS, since it involves actual math, which is comprehensible by only about 2% of the population.

  • BakedPenguin||

    They might not gloat too much. As incompetent as they are, they would have to be aware that the drop off in calculated unemployment and the new jobs stats differ greatly, something even the idiots in the mass media can figure out. Also, people who are out of work know it, as do their friends and family. I suspect they'd keep any 'positive-spin' jobs comments cautious and limited.

    Of course, I've been wrong before.

  • ||

    If Bush can force the head of the department of homeland security to raise the security level a few days before the election, it's a slam dunk that the unemployment numbers can and will be manipulated. And, of course, the media will run with whatever they're given, because, well, people are idiots and they know it!

  • ||

    I keep asking myself the same question I think the article ask, Why hasn't congress acted against the president's iligal act in Libya. Are the republicans so scared of what might happen if they actually enforce the laws are they gun shy from the their political loss over Clinton's stupid impeachment procedings. This act alone say none of them should be re elected since they are not even trying to enforce this law.

  • Realist||

    The answer is the Republicans are fucking losers too.

  • ||

    I agree.

    They are certainly fucking most Americans.

    :P

  • ||

    No, I think that they don't screw it up for next time somebody from TEAM RED is in office.

  • Art-P.O.G.||

    That's a bingo!

  • ||

    Unfortunately, we do not have a president who is willing to take no for an answer.

    Can you name a president who was?

  • Almanian||

    Jimmy Carter

    "Release those hostages, Ayatolla!"

    "No!"

    "Well....shit..."

  • Almanian||

    You, of course, will recall that it took the CANADIAN military to rescue the folks in Iran.

    C-A-N....ADA! C-A-N...ADA! C-A-N....ADA!

    The USA! chant doesn't translate very well....sorry....

  • Jeramy||

    So using this logic we could bomb and use drones on say...Canada, and when they get pissed, just say "No, no, no. Its okay Canada we aren't actually at war with you"

  • ||

    Those floppy headed bastards have had it coming for a while.

  • Len||

    Let's clarify something here; the WPA is itself an unconstitutional law. The framers, and thus the ratifiers, placed powers that had been considered executive with the legislative branch.

    Examples:

    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water

    To raise and support Armies

    To make Rules for the Government and Regulation of the land and naval Forces

    Pretty much all of the clauses concerning the military in Article 1, section 8.

    The president has never had authority to go beyond defense, and only ONLY!! when the congress declares war is the president authorized to engage offensively.

    I further quote Alexander Hamilton, who of all people would contest for unlimited power in the executive.4

    Federalist 69;

    First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor.

    Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.1 The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States.

    Since the congress has no authority under the instrument that grants them power to rearrange the distributions of power, then the WPA is unconstitutional and should not be the point from which an argument is put forward concerning what the president is allowed to do..it already concedes too much that should not be conceded.

  • ||

    Shut the fuck up, tea-bagging libert-aryan. You're obviously just a racist shill for the Republicunt Party!!!!!111111111111111111111111

    Honestly, half of the people you'd need to make that argument to wouldn't know their assholes from holes in the ground, or the Constitution from the Communist Manifesto, that's how damned moronic they are. Or full of shit -- either they're idiots, or they're full of shit, or both.

  • Obama Afrikanus||

    And his New Afrika Korps of colonizers, regime-changers and covert assassins.

  • Obama Pakistanus||

    And his New Pakistani Murder, Invasion and Occupation Force. He knows the wicked Pakistanis are in possession of WMDs.

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    I can't understand why Reason is so ignorant of the actual science, of the problems with the IPCC, and of the level of corruption in the climate field.

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