US President Barack 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 US military participation in the air war in Libya without congressional authorization, according to officials familiar with internal administration deliberations.
Pentagon general counsel Jeh Johnson and acting head of the Justice Department’s Office of Legal Counsel Caroline Krass told the White House they believed US military involvement in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Obama to terminate or scale back the mission after May 20.
However, Obama decided -instead to adopt the legal analysis of several other senior members of his legal team — including White House counsel Robert Bauer and State Department legal adviser Harold Koh — who argued that the US military’s activities fell short of “hostilities.” Under that view, Obama did not need the permission of the US 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 that rarely happens.
White House spokesman Eric Schultz said there had been “a full airing of views within the administration and a robust process” that led Obama to conclude 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.
The White House unveiled its interpretation of the War Powers Resolution in a package about Libya it sent to Congress late on Wednesday. On Thursday, House Speaker John Boehner demanded to know whether the Office of Legal Counsel had agreed.
“The administration gave its opinion on the War Powers Resolution, but it didn’t answer the questions in my letter as to whether the Office of Legal Counsel agrees with them,” he said. “The White House says there are no hostilities taking place. Yet we’ve got drone attacks under way. We’re spending US$10 million a day. We’re part of an effort to drop bombs on -[Libyan leader Muammar] Qaddafi’s compounds. It just doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities.”
As the May 20 deadline approached, Johnson advocated stopping the drone strikes as a way to bolster the view that the remaining activities in support of NATO allies were not subject to the deadline, officials said. However, Obama decided that there was no legal requirement to change anything about the military mission.
The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.
In this case, however, Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Obama, who is a constitutional lawyer, and he made the decision.
The theory Obama embraced holds that US forces have not been in “hostilities” as envisioned by the War Powers Resolution at least since early April, when NATO took over the responsibility for the no-fly zone and the US shifted to a supporting role providing refueling assistance and surveillance — although remotely piloted US drones are still periodically firing missiles.
The administration has also emphasized that there are no troops on the ground, that Libyan forces are unable to fire at them meaningfully and that the military mission is constrained from escalating by a UN Security Council resolution.
That position has attracted criticism. Jack Goldsmith, who led the Office of Legal Counsel during the Bush administration, has written that the administration’s interpretation is “aggressive” and unpersuasive, although he also acknowledged that there was no clear answer and little chance of a definitive court ruling, so the reaction of Congress would resolve the matter.
Walter Dellinger, who led the Office of Legal Counsel during the Clinton administration, said that while “this is not an easy question,” Obama’s position was “both defensible and consistent with the position of previous administrations.” Nevertheless, he criticized the administration’s decision-making process.
“Decisions about the lawfulness of major presidential actions should be made by the Department of Justice, and within the department by the Office of Legal Counsel, after consultation with affected agencies,” he said. “The president always has the power of final decision.”
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