Obama Overruled Lawyers on Libya

President Obama overruled his top legal advisors in deciding that the Libya operation does not amount to "hostilities" under the War Powers Act.

President Obama overruled his top legal advisors in deciding that the Libya operation does not amount to “hostilities” under the War Powers Act. (In fairness, he had other top lawyers on his side.)

NYT (“2 Top Lawyers Lost to Obama in Libya War Policy Debate“):

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.

A White House spokesman, Eric Schultz, said there had been “a full airing of views within the administration and a robust process” that led Mr. Obama to his view that the Libya campaign was not covered by a provision of the War Powers Resolution that requires presidents to halt unauthorized hostilities after 60 days. “It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”

As to the president’s conclusion, I fully endorse Andrew Exum‘s view:

I’m no lawyer, I’ll admit, but I do know thing or two about shooting wars, having been in a few and having studied others, and the conflict in which we have intervened in Libya is most certainly a war. The reason why the Obama Administration’s legalistic determination that it is not a war is ridiculous is not because we’ve gotten to the point where we care most about which lawyers were smarter than other lawyers but because it does not pass the “common sense test” or “laugh test” of most Americans. I more or less approve of the way this administration has handled foreign and defense policy, but the way in which it has handled Libya, from the decision to intervene to this stupid determination that it is not a war, is a head-scratcher. And this latest episode, which to most Americans I suspect looks like a bunch of eggheads arguing about how many bombs you have to drop for it to be “hostilities” and, while they’re at it, how many angels can dance on the head of a pin, is simply one of the stupidest things I’ve read in some time. It does not pass the laugh test, and the administration has handed an empty net to anyone looking to score points off of this. Just incredibly stupid.

Additionally, I think it’s stupid because he could almost certainly obtain Congress’ support if he forced them to take a formal stance. But Obama is also taking some grief in the blogosphere on the legal front.

Jonathan Adler, director of the Center for Business Law and Regulation at Case Western, notes how unusual overruling OLC is. His Volokh Conspiracy colleague John Elwood, who as held numerous senior-level positions at DOJ and is now in private practice, raises a fundamental question, citing a question Senator Sheldon Whitehouse asked him at a 2008 hearing:

The Department of Justice is bound by the President’s legal determinations. I mean, I thought we’d cleared that when President Nixon told an interviewer that if the President does it it’s not illegal. That stands on the proposition that the President has authority to supervise and control the activity of subordinate officials within the executive branch.

But the idea that the Attorney General of the United States and the Department of Justice don’t tell the President what the law is and count on it, but rather it goes the other way, opens up worlds for enormous mischief.

That strikes me as nonsense. The AG and the DOJ are subordinate to the president, not the other way around. The AG and other senior members of the DOJ team are political appointees who serve at the pleasure of the president. And even the opinions of the professional staff at DOJ and OLC are merely advisory; it’s the president’s job to make the ultimate call.

Now, given that these people are not only highly skilled lawyers but on the president’s side, it’s extraordinarily unwise to overrule their judgment. But that’s true of senior military, intelligence, and diplomatic advisors, too, and we think nothing of it when presidents exercise their judgment independently of their advice.

Nixon’s statement that “When the President does it, that means it is not illegal” is demonstrably untrue. The president, like any other citizen, is obliged to follow the law. Indeed, a unanimous Supreme Court ruled (unwisely, in my view then and now) in Clinton v. Jones that a sitting president was subject to civil lawsuit. It’s unclear whether a president is subject to arrest for criminal violations while in office, since the Constitution doesn’t contemplate it and, thankfully, we’ve never had to test it. The Constitutional remedy is the impeachment process.

But Obama’s call on Libya isn’t a criminal matter, but a technical matter of deciding when a law is triggered. While I strongly believe he erred here, agreeing with Exum that his decision was laughable on common sense grounds, there’s a plausible legal argument to be made here. (See Richard Fernandez‘ interesting discussion, via Jack Balkin, of the differences between legal truth and objective truth.) And, again, the remedy is the checks and balances set forth in the Constitution, not presidential deference to his subordinates.  As Doug noted yesterday, Congress is not receiving Obama’s skirting of the War Powers Act well. They have all manner of tools at their disposal, including and up to impeachment (which, to be clear, would be unwarranted). Theoretically, they could also take the matter to the courts; realistically, the courts will almost certainly decline to get involved.

There’s also an election next November. If the people are truly upset by this (and, I don’t think they are) they can vote Obama out of office.

FILED UNDER: Law and the Courts, National Security, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Rick Almeida says:

    I read this and am surprised it’s not getting more attention. I’m disappointed to see the administration use the WH Counsel and Harold Koh to overrule the OLC.

  2. john personna says:

    This is as I called and expected. It’s a pattern. Staff will tell presidents to go for it, and too commonly they do. Power seduces everyone in the circle.

  3. superdestroyer says:

    Think of how many stereotypes that the decision reinforces.

    1. Progressives believe that rules are for others but not for themselves.
    2. Lawyers can wiggle out of any law, rule, regulations,
    3. Blacks have real problems following the law.

    I guess that different groups will pick their favorite stereotype to use.

  4. Rock says:

    “So when the President does it, that means it is not illegal.”

    – Nixon

  5. john personna says:

    Heh, good Nixon quote.

  6. JKB says:

    Well, this little war without the paperwork act has always been a dodge.

    War is not only an act, but a state or condition, for nations are
    said to be at war not only when their armies are engaged, so as to be in the
    very act of contention, but also when, they have any matter of controversy
    or dispute subsisting between them which they are determined to decide by
    the use of force, and have declared publicly, or by their acts, their
    determination so to decide it. Bouvier’s Law Dictionary, Revised 6th Ed (1856)

    So all the little use of force events we’ve had have been wars regardless of the lies used to cover them by the politicians. The UN is a great warmonger, routinely starting wars between nations when they issue a declaration authorizing force. And it is only the lawyers and the political “elite” who run around with their myth that they aren’t wars. Of course, if they were to face that those Nobel Peace Prizes would theoretically be hard to come by.

    Obama’s problem is that not having been declared or, even approved by weak-kneed legislative “authorization”, by the branch of government given the authority to declare war, this war is illegal. Hardly a real problem for him unless it does cause his ouster in the next election but it does leave him open to future prosecution internationally, assuming the wink-wink, nod-nod legality of the UN declaration, which permits countries to wage war without approbation by the international community but doesn’t actually legalize it nationally, is challenged in the future. This little adventure is actually exceeding the UN permissions for this war.

  7. Tano says:

    I don’t quite see Andrew Exum’s point. He is claiming that somehow the Obama administration’s position is that what is happening in Libya is not a war. That is clearly not the case. What the administration is arguing is that the US contribution to the effort is so limited that it does not rise to the level necessary to trigger the implementation of the War Powers Act.

    This isn’t all that complicated. The administration is not making an existential claim as to the nature of what is happening there. It is only addressing our own limited contributions to that effort, and comparing it to the actual text of the law.

  8. Tano says:

    President Obama overruled his top legal advisors

    Of course, this statement, as written, is false. Obama overruled SOME of his top legal advisors – which must necessarily be the case in any scenario in which there is not unanimity amongst all his advisors.

    To be precise, his WH counsel would be the one who is most closely fulfills the role of “top legal advisor” and Obama agreed with him.

  9. PGlenn says:

    I’m not a lawyer, either, but numerous legal analysts have explained that OLC’s role/authority falls somewhere between strictly advisory and having some (unwritten and/or tacit?) default binding authority on the president. I won’t presume to sort out where on the legal-theoretical spectrum that role/authority would fall, and/or what that means in reality; nontheless, Mr. Joyner seems to be at least slightly underselling OLC.

  10. john personna says:

    Actually, it’s correctly rewritten:

    President Obama supported by his top legal advisors

  11. James Joyner says:

    @Tano: The United States is engaged in a UN Security Council authorized conflict in Libya, during which it has fired countless missiles and killed goodness knows how many of Gaddafi’s forces. We’re at war.

    And, certainly, the head of OLC and the Pentagon’s top lawyer are rather key figures in such a matter.

    @PGlenn: OLC issues binding opinions for executive departments. It doesn’t bind the president, however. Jay Bybee and John Yoo, for example, issued some dubious decisions during the last administration; it’s a political institution.

  12. Tano says:

    The United States is engaged in a UN Security Council authorized conflict in Libya, …. We’re at war.

    Once again, this is not the issue. Why is this such a difficult concept? The question is not whether “we are at war” in common parlance. The question is whether our engagement is of sufficient scope to trigger the specific provisions of the War Powers Act.

    Maybe Exum had some valid point somewhere in his piece, but the part that you quoted, and your response, both completely miss the point.

    certainly, the head of OLC and the Pentagon’s top lawyer are rather key figures in such a matter.

    No doubt. But so are the State Dept. top lawyer and the WH counsel. Why not headline the post “Obama agrees with top lawyers on Libya”? It would have been equally misleading.

  13. James Joyner says:

    @Tano: OLC is the executive branch’s Supreme Court; it’s the definitive ruling.

    And the notion that killing enemy forces from the air doesn’t constitute “hostilities” as envisioned by WPA is, to say the least, dubious.

  14. @superdestroyer:

    Think of how many stereotypes that the decision reinforces.

    1. Progressives believe that rules are for others but not for themselves.
    2. Lawyers can wiggle out of any law, rule, regulations,
    3. Blacks have real problems following the law.

    I guess that different groups will pick their favorite stereotype to use.

    Wow.

    I would think that if that is one of the things that comes to mind in this situation , then a little introspection is in order.

    To me, this brings up rather long-term (dating back to at least Jefferson) questions of legislative-executive relationship regarding military deployments (an issue that became even more significant in the post-Cold War Era).

  15. Tano says:

    OLC is the executive branch’s Supreme Court; it’s the definitive ruling.

    Oh c’mon James,.you yourself have written today “the opinions of the professional staff at DOJ and OLC are merely advisory; it’s the president’s job to make the ultimate call.”
    That is not the same role that the Supreme Court plays – i.e. a real “definitive ruling” that the President is obliged to follow.

    And the notion that killing enemy forces from the air doesn’t constitute “hostilities” as envisioned by WPA is, to say the least, dubious.

    Well that characterization is a little closer to the true ambiguity. Clearly there is enough reason to back your position such that the OLC and Pentagon counsel agree with you. But there is also good reason to find otherwise, as others have done.

    From my non-legalistic reading of the text, it seems that the lack of actual human assets in or above Libya is a relevant factor. I am old enough to have been a voting political junkie when the WPA was first debated and passed. The driving motivation for the law was to prevent another case of the Vietnam escalation that the Congress felt it had very little control over, once the Tonkin Gulf Resolution had passed – and no one who had voted for that envisioned what was to come.

    There was a lot of pushback though, from those who were determined not to tie the President’s hands. With 50K recent body bags sent back home, there was at least an across the board agreement that making THAT kind of a commitment – where serious casualties would occur, should be more strictly under Congressional control.

    If this Libya situation plays out as seems likely, that our involvement continues to be mainly the supply of ammo and intelligence, and the drone strikes, with no human assets in harm’s way, then the whole episode seems to me to be a lot closer to the type of thing that the WPA authors would have allowed, rather than wanted to prevent.

  16. One problem is that thanks to the court’s refusal to get involved in situations like these, there’s really no check on the president exercising arbitrary power that doesn’t depend on a popularity contest. And if the president only has to obey the law when it’s popular to do so, he is for all intents and purposes above the law.

  17. @SD:

    I think this is an excellent point. We have in these situations a conflict between legislative action and executive action. Such a conflict can only be fully settled by judicial action. In the absence of such action we are left with legal/constitutional ambiguity.

  18. michael reynolds says:

    If this is a war requiring authorization, then I suspect we’ve had a hell of a lot of wars we don’t talk about or acknowledge and that never required authorization.

    What if we had covert forces inside, say, Venezuela, interdicting drugs, assisting local guerilla groups, and so on? Not exactly an unlikely scenario. Or something similar in Yemen, where we are obviously flying Predator missions. Do we have military advisors in remote areas Iran, and are they engaged in hostilities with the Iranian government?

    I think the problem here is that we may be involved in quite a number of events that could be called war, which we don’t want to publicly acknowledge, but which are not fundamentally different from Libya.

  19. JKB says:

    @mr – The question is not whether the operations are publicly acknowledged but whether they were authorized by Congress either explicitly or via some broad authorization.

    And interdicting drugs is not war with Venezuela, assuming we avoid the direct accusation and they avoid the direct ownership of drug running. it is a violation of sovereignty, which could cause Chavez to feel he’s at war with us but it is not an issue with the foreign nation we intend to solve by force but rather with groups inside their territory.

  20. superdestroyer says:

    Stormy Dragon,

    Congress has an enforcement mechanism because Congress can refuse to fund any action in Libya and can make criminal the expenditure of funds. That way, the civil servants cannot be involved and the war against Libya would come to a halt.

    However, Congress has, since Korea, refused to exercise the power of the purse to force the Executive Branch.

  21. michael reynolds says:

    JKB:

    If we’re supplying weapons and training with the knowledge that those will be used against a government, I think we are definitely solving our problems with force.

    The part of the Libya mission that involves Predator attacks is essentially identical to the work we do in Yemen, and probably other nations as well. The part that involves supplying intel and command and control for our allies is essentially the same as any advisory mission of CIA or special forces working with a guerilla group. How is it different if we send targeting data to a Dutch or French jet as opposed to offering same to an Iranian guerilla group?

    I suspect — and obviously I don’t know — that the administration doesn’t want to establish a precedent that would require invocation of War Powers Act every time we carry out an ongoing special forces mission in a hostile environment. Because I suspect there are a lot more of those now, and in the recent past, than we care to acknowledge.

  22. Threatening to essentially abandon troops in the field is a rather blunt instrument for dealing with a situation like this. Also, unless the president’s party controls neither house of congress, it’s unlikely to be possible. And again, we’re down to a method that’s largely tied to the popularity of the Presiden’t rather than then the rule of law.

  23. Tsar Nicholas II says:

    Having read this report, and speaking as someone who’s far to the right of Attila the Hun when it comes to executive branch authority and foreign policies, I can say now with all sincerity that Rambobama conclusively has become the greatest Democrat president of my lifetime. With a little more effort — e.g., if he were to dispatch troops to break up a union strike or something along those lines — then he would solidify his place as No. 2 behind only the great Harry S Truman as my favorite Democrat president of all time. Cheers to you, Rambobama.

  24. PD Shaw says:

    I’m not completely convinced by the Mike Reynolds and Tano lines here, but I think they are certainly making credible points. The President has made a decision that this not “war,” and while I don’t think the courts are likely to get involved, they will never get involved if Congress never issues a decision (resolution) that this is a “war.” Only, then is there possibly a dispute to referee.

  25. ponce says:

    Is it a war if we’re bombing our own side like we did today?

    Couldn’t Obama claim it’s just realistic training for the Libyan rebels?

  26. matt says:

    Think of how many stereotypes that various Bush decisions reinforced.

    1. Conservatives believe that rules are for others but not for themselves.
    2. Lawyers can wiggle out of any law, rule, regulations,
    3. Whites have real problems following the law.

    Ooo lookie I can do it too!!

  27. superdestroyer says:

    Matt,

    At least President Bush, I and II, went to Congress and got approval. Remember that Hillary Clinton was hurt by her vote on Iraq. Remember the debate before the first gulf wars. It was Clinton that did not go to Congress before the U.S. started dropping bombs on Serbia (or the Sudan or Afghanistan.

  28. matt says:

    Congress didn’t declare war against Iraq they gave an authorization of use of military force which was then used by Bush as a blank check to engage in war thanks to the vague wording. The resolution authorized President Bush to use the Armed Forces of the United States “as he determines to be necessary and appropriate” in order to “defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevant United Nations Security Council Resolutions regarding Iraq.”

    To this very day the legality of the Iraq is debated in this country and worldwide.

    I haven’t been able to figure out on what basis Bush derived his authority to invade Afghanistan either. I believe he was just using the Authorization for Use of Military Force Against Terrorists as a blank check there too..

  29. Wayne says:

    What does congress do when they authorize war? They authorize the use of military force. The idea that congress must use the words “we declare war” to declare war is asinine.

  30. mattb says:

    @SD: in regards to Matt’s claim that looking at Bush II and Matt’s accusations we could discuss the redefinition of Waterboarding as enhanced interrogation, and the “stretching of the truth” when it came to Iraq’s involvement in 9/11 and the imminent threat they posed to the US in terms of existing and developing WMDs.

    @JKB:

    And interdicting drugs is not war with Venezuela, assuming we avoid the direct accusation and they avoid the direct ownership of drug running. it is a violation of sovereignty, which could cause Chavez to feel he’s at war with us but it is not an issue with the foreign nation we intend to solve by force but rather with groups inside their territory.

    One interesting issue that this brings up — more to do with Pakistan — is how similar the “War on Terror” model is to the “War on Drugs” — in that we are talking about attacks on extra-state actors that exist within sovereign territories and have a nebulous relationship with local authorities.

    If Quadafi wasn’t the recognized leader of a country, but instead was the head of a “terrorist organization” located within Libya, I wonder how this situation might play out differently.