2 Top Lawyers Lost to Obama in Libya War Policy Debate

[onpatrol98]

By CHARLIE SAVAGE
Published: June 17, 2011

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.

http://www.nytimes.com/2011/06/18/world/africa/18powers.html?ref=us

[robcon]

1. Two things are horrible about this report, if true.

1. Obama disrespected his legal experts in deciding whether he needs to get Congressional approval.

2. Someone in the room leaked the story to the NYT.

[HereSince1628]

3. Seems like mixed opinions among legal advisers provided

an opportunity for the president to choose a response for himself.

The legal advise he went with included an opinion that parsed the meaning of hostilities. Reporting earlier in the week suggested that parsing stretched common sense and suggested that unilateral push-button/remote attacks weren't hostilities. It's possible that the argument was motivated in order to protect US participation in NATO as well as to rationalize the US campaign of attacks by drone aircraft on targets across SW Asia. Because of the organizational nature of our government, the executive branch and congress struggle over control of power. Although on a different matter entirely, we saw this practice of the executive branch searching for an enabling decision constructed from stretching and parsings of legal meanings in the memos of Mr. Yoo that provided the thin cover for 'enhanced interrogation' (a.k.a. torture) by the Bush administration.

The reality is that our president chose to accept "enhanced parsing" to justify circumventing limits of executive power that congress thinks, and common sense suggests, was intended by the war powers act. The president found a way to do what he wanted to do without Congressional approval. And in that decision, legal challenges not withstanding, he has established remote controlled war and confirmed war by proxies/allies as outside the control of Congress under the war powers act.

If one believes that in our democracy limiting the presidency's war making powers is a good thing, this decision is another in a line of not such good things.

[yurbud]

8. the Terminator defense: it's not a crime if my robot (drone or cruise missile) does it.

[Thaddeus Kosciuszko]

2. Well, what do you expect?

After all, Obama is always the smartest man in room.

[Demeter]

10. that's because the room is empty

[bluedigger]

4. Not really.

Two top lawyers were in the minority, and lost the debate. Given that the President was a Constitutional Law scholar, I think he probably had as much knowledge on the issue as anybody else in the room - this is his area of professional expertise, after all. I don't know who's right on the issue, but I do support Congress' challenging of the authority of the President. We need to get this resolved/clarified, as it is a constantly recurring problem.

[MrDiaz]

5. LOL

He sure does love him some wars.

[Doctor_J]

6. The prez has had to choose who his freinds & foes are a lot lately

he's been choosing poorly most of the time.

[pmorlan1]

7. Hubris Writ Large

Obama, like Bush, thinks he is King of America.

[Jim Lane]

9. I guess that, in Obama's view, the bombing of Pearl Harbor didn't constitute "hostilities"

And FDR should've callled it "a day that will live in questionable legality" or the like.