[Everyone give a warm round of applesauce to our newest contributor, roadkillrefugee! -ABL]
Critics of the White House’s decision to determine that the current actions in Libya do not constitute “hostilities” for purposes of the War Powers Resolution are either deliberately making political attacks not based on the law or fact, or they are misinformed. The president’s decision to solicit views from the Department of Defense, the DOJ’s Office of Legal Counsel, the State Department’s Office of the Legal Adviser and the White House Counsel was lawful and reasonable. It was also lawful and reasonable for him to make his own decision after hearing differing legal views on the question and he had no obligation to defer to the OLC viewpoint over the others.
There is no mention in the Constitution of the Office of Legal Counsel. It has no constitutionally defined role to “canvass” legal opinions from expert agencies in the federal government and to issue opinions that restrain the president. OLC primarily opines on other federal agencies’ compliance with federal law, often at the request and in furtherance of the policy priorities of the president, resolve disputes between federal agencies, and to advise the attorney general and president.
OLC’s authority to issue opinions that bind the Executive branch is misunderstood and overstated. OLC works for the attorney general, and has a tradition of working closely with the White House, including the White House Counsel’s office. For example, Bill Barr, head of OLC under President George H.W. Bush, worked very closely with White House Counsel C. Boyden Gray (Barr later became Attorney General under Bush). Both the Attorney General and the White House Counsel serve at the pleasure of the president. An example of a formal OLC opinion might be a federal agency’s prospective assumption of a liability, and whether doing so would be compliant with a federal fiscal law. If OLC opines that the assumption of liability is not permitted under the law, the federal agency will follow OLC’s opinion. In this sense, OLC’s opinions are “politically” binding on the Executive branch. The courts will not intervene to enforce the OLC opinions. In addition, since the Executive branch controls enforcement and prosecution of federal law, nobody who follows an OLC opinion in good faith should expect to be prosecuted, but those who fail to can expect demotion, termination or even prosecution. OLC is not in the business of rendering opinions that broadly restrain the president’s authority. It will opine on specific legal questions requested by the president, but they are not “binding” on the president in the sense that he is constitutionally obligated to follow them, or that in the same sense that other federal agencies are politically bound to follow them. That is a central point of confusion in the media – OLC’s role with respect to other federal agencies is fundamentally different than its role with respect to the president (essentially the difference between managing down and managing up).
The War Powers Resolution is a law that was passed over President Nixon’s veto in 1973. Government lawyers, judges and litigators interpret statutes for a living. When a question of statutory compliance arises, lawyers read the statute for guidance. If the face of the statute is unclear, they may also look to the legislative history of the statute to understand the intent of Congress when it wrote the law. The issue of whether the Obama administration is obligated to seek Congressional authorization under the War Powers Resolution depends on whether the action in Libya currently constitutes “hostilities” within the meaning of the statute. If the actions do not constitute hostilities within the meaning of the Resolution, then the law doesn’t apply.
Now you have undoubtedly heard all sorts of spin about this. Boehner frames the issue as if we’re only dealing with the term as commonly understood and not as used in the statute, “It just doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities. Now that doesn’t even pass the smell test.” Yes, clearly there are hostilities going on in Libya, and clearly we are playing some role in Libya. Neither of those points is in dispute by the Obama administration, as he well knows. The issue is whether the U.S. actions are enough to trigger the Congressional consent element of the Resolution.
Since the law was enacted, OLC has only directly addressed the Resolution’s constitutionality once: on February 12, 1980, the last year of the Carter Administration. It looked at a number of aspects of the law, including what constituted “United States Armed Forces” for purposes of the law (and determined that military personnel under the direction of the CIA are not covered by the WPA). And it covered what constituted “hostilities” for purposes of the Resolution.
The Carter OLC looked to the legislative history of the WPA, which revealed that the State Department and the Departments of Defense played significant roles in the legislation. The two departments testified before Congress that the term “hostilities” is “definable in a meaningful way only in the context of an actual set of facts,” but as applied by the Executive, the term included: “a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces, and “imminent hostilities” was considered to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces. In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area.”
The Carter OLC concluded, “We agree [with State and DOD] that the term “hostilities” should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad. Such situations do not generally involve the full military engagements with which the Resolution is primarily concerned. For the same reason, we also believe that as a general matter the presence of our armed forces in a foreign country whose government comes under attack by ‘guerrilla’ operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to ‘command, coordinate, participate in the movement of, or accompany’ the forces of the host government in operations of such guerrilla operations.”
Neither of the scenarios described above precisely fits the current circumstances in Libya – sporadic attacks on troops stationed abroad or the presence of armed forces in a foreign country under attack by guerrilla operations unless we were running or significantly assisting the counter-attack operations of the host government. But what is directly on point is OLC’s conclusion that the Resolution was intended to cover full military engagements rather than circumstances where U.S. armed forces are not actively engaged in exchanges of fire with opposing units of hostile forces.
According to Charlie Savage and Mark Lander’s June 15th story in the New York Times, the report submitted to Congress by the Obama White House concluded that the Resolution was not applicable to Libya because “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.” Now you can see why the White House legal reasoning was coming from – the Obama White House was relying on the Carter OLC opinion.
Savage and Lander went on to report what Harold Koh said in an interview about the White House’s report to Congress:
“The two senior administration lawyers contended that American forces had not been in “hostilities” at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to primarily a supporting role — providing refueling and surveillance to allied warplanes, although remotely piloted drones operated by the United States periodically fire missiles, too.
They argued that United States forces are at little risk because there are no troops on the ground and Libyan forces are unable to exchange fire with them meaningfully. And they said the military mission was constrained by a United Nations Security Council resolution, which authorized air power for the purpose of defending civilians.‘We are not saying the president can take the country into war on his own,” said Mr. Koh, a former Yale Law School dean and outspoken critic of the Bush administration’s expansive theories of executive power. ‘We are not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.’”
There’s an interesting dynamic at work here, where hear of the divergent viewpoints and assume Harold Koh must be a hack Obamabot and Caroline Krass, acting head of OLC, must a paragon of legal virtue. Well, this might surprise you: Krass was a lawyer in the Obama White House before she moved to OLC. She was Associate Counsel to the President for National Security Affairs. So let’s say her view had come out the other way – wouldn’t the fact that she was a former Obama White House lawyer cause you to suspect she was a Obama loyalist just trying to please her boss (as some have dismissed the supportive opinion of White House Counsel Robert Bauer for that very reason)? (By the way, for those conspiracists who speculated Obama secretly didn’t want Dawn Johnsen to get confirmed as head of OLC, the fact that he knowingly placed a critic of Executive power like Krass in place as the acting head of OLC should put those theories to rest).
Meanwhile, Harold Koh is considered one of the leading legal minds in the country. He has three tours of duty in government – first as a young career attorney advisor in OLC, then as a political appointee in the Clinton Administration’s State Dept, and now as the State Department Legal Adviser. Actually, he has had four tours of duty if you include his Supreme Court clerkship with Justice Harry Blackmun. That’s right, Koh chose to apply to work for one of the leading liberals of the modern Supreme Court; the author of Roe v. Wade. Koh has been outspoken critic of executive power, even filing a brief challenging the legality of President George H.W. Bush’s Persian Gulf War, and critic of the second President Bush’s torture practices. He has also been a champion of civil and human rights. Despite this, I’ve heard several instances where his lifetime record as a stalwart champion of civil rights and liberties, and a critic of expansive executive power, has been dismissed because people didn’t like the outcome and assume a sham process was employed.
So to recap, the White House was never obligated to only listen to OLC and to no other government lawyers regarding the applicability of the Resolution to Libya. DOD and State were the two expert agencies on the issue, having played a role in the Resolution’s enactment, and their legal views were highly relevant. The White House was never obligated to defer to the acting head of the OLC’s view regardless of her conclusion. (Quick aside, AG Holder ignored a formal opinion of OLC in April 2009 that found a DC voting rights bill unconstitutional. He instead went to the Solicitor General’s office, which found it constitutional, and followed its opinion. Recall that many on the Left who are criticizing the process now had no complaints in 2009.) The legal issue is a legitimate one to which reasonable lawyers can disagree. It will never be reviewed by a court in any event (it would be considered “nonjusticiable”). The President had every right to break the tie among the four lawyers and make his own decision. That is his job in any number of situations. Recall that his national security advisers were not unanimous on the plan to get Osama bin Laden. Arguments that this decision-making process is like George W. Bush and Dick Cheney’s manipulation of OLC to secure a favorable view of waterboarding requires turning the facts on their head. There is no evidence that President Obama pressured Krass or DOD’s general counsel in the least. The White House hasn’t hidden the fact that these four advisers had different views.
Finally, note that this whole issue is intensely political. You have Republicans who earlier in their careers (in the mid-90s) tried to repeal the Resolution now demanding Obama follow it in this case. You have Democrats and Republicans who have publicly stated they support the actions in Libya, and who could introduce legislation to authorize the action in Libya any time they want, sitting on their hands like cowards. This is much ado about nothing.
It is much ado about a black president failing to president in a way that white liberals, specifically those who think he is not as liberal as they’d like. If it had been an appropriately liberal president EdwardsKuciniNader, then these same anti-war types would be finding reasons why this is a reasonable compromise in helping Libya without actually engaging in a war. And, yes, I think the fact that hostilities has more meaning than the one people think it does is a problem. I don’t support action in Libya, but it’s the one real disagreement I had with a real old fashioned peacenik hippie. He wanted engagement, he wanted bombs and boots on the ground. I feel it is up to the people and I seriously question if it’s possible for a popular uprising to succeed if, you know, it’s not exactly that popular. If these people wanted change, no amount of fear would keep Qaddafi in power. However, I can’t take the pearl clutching over constitutionality when this is not a war and no matter how much you want to say that it is, we are not at war as a unilateral entity, we are actually in compliance with our NATO allies. It’s an interesting review of the roles of the OLC and WHC, so thank you, RKR.
Close the comments – ruemara has said it all!
FABULOUS to see you here, rkref!!
Thanks! I haven’t had this much fun since Callista let me go on a spending spree on Newt’s line of credit.
Article I, Section 8 of Constitution “Congress (House & Senate) has the power to declare war”. President Obama did not get approval from the House of Representatives to go to war with Libya or Yemen. The President nor anyone in the Executive Branch of the Gov’t has the power to bypass Congress in declaration of war.
WOOO. So glad to see you here, rkref. :)
Very well written and argued. Easy to do one, tremendous challenge to do both.
You are so right. You know it must be very strange to be President Obama. A man of extraordinary vision and brilliance approaching to genius, he can’t get anyone to notice. He is like a great painter or musician who is ahead of his time, and who unveils one masterpiece after another to a reception that, when not bored, is hostile.
Sarcasm does not become you, Lawguy.
Glenn Greenbeck has been particularaly hyperbolically hysterical about this. Funny, I don’t recall the shrieking and wailing and pearl-clutching when NATO was intervening in Kossovo.
I guess it’s another example of IOKIYNO (It’s OK if you’re not Obama).
Truman, Eisenhower, JFK, LBJ, Reagan, GHWB, WJC & GWB didn’t need War Powers act. Obama does!
No other previous President needed to turn the United States into Somalia in order to get the debt ceiling raised. Obama does!
No other previous President needed to show his super special birth certificate for Presidenting While Black. Obama does!
Etc. etc.
Kucinich and other Congresspersons sued Clinton.
http://www.tnr.com/slideshow/politics/82621/kucinich?5
Maybe we shouldn’t have helped NATO in Libya. So what if Benghazi had become the next Rwanda!
I truly despise war but there are times when, sadly, it is a necessary evil.
Thanks for that Starshine, lol, Kucinich is consistant but to the point of ideological absurdity.
This is about as clear a ‘causus belli’ as anything we’ve had thus far this century.
Instead of the hysterical framing by Firebags & Greenbecks that Obama is elevendy kajillion times worse then Bush because he unilaterally bombed poor brown ME people for lulz; I like the fact that we are just going back to Clinton-era multilateralism (instead of fake Bush-era multilateralism).
Someone should ask Greenbeck: F**king Alliances and Treaty Organizations, how do they work?
Of course, like they like to pretend that the other two branches of government don’t exist; they like to pretend an entire continent of 400 million people just does not exist.
Add to the irony that given War is Always Bad All the Time; apparently diplomacy is Bad and Evil; when Baby Jesus Manning released those 250,000 smoking gun war crime *diplomatic* cables (insert dramatic sting here) and was not given a Congressional Medal of Honor and a Nobel Prize for his efforts, it just reinforces how Barack Hitler OHitlemba is using his Evil Hydra Tentacles to Do Evil Things via overt acts like bloodthirsty unilateral wars for shits & giggles; and the sub-rosa means by using *diplomacy* (insert second, more dramatic sting here) around the globe.
Clearly, we should withdraw every troop and close every embassy around the planet. Any member of the United States Government on any level whatsover must be prevented from setting foot outside the U.S. Border. I think it’s the only way to stop OHitlermba!
Villemar,
I laughed out loud. I’m still giggling at… “elevendy kajillion”. Ain’t it the truth!
Darn people scream for him to do something, he does something then darn people scream he shouldn’t have done something. Wears.me.out. Or, he does something and darn people say he didn’t do enough. Addiction to outrage is what it is. Now, I’m talking about the folks who are never pleased, not folks who wish some actions had been done a little differently or feel laws or bills could be improved.
Manning. Sigh. The claim he’s a whistleblower. If it had only been the video that was released, I’d agree with the term “whistleblower”. But, that wasn’t a case. It was a massive document dump. I have real issues with that, especially the ambassador info. Many friends work in other countries doing silly stuff like providing medical care, running orphanages, teaching AIDS awareness, etc., and when they notice things like, oh say, human rights violations, they go to embassies and speak with ambassadors. It’s common practice. Since Mr. Manning chose to dump massive amounts of info in Assange’s lap, that information could very well be included and could put their lives and the lives of their friends at risk. And are we supposed to have faith that Assange will redact names, places,etc.? Please.
So to go on and on, but it felt kind of good to vent.
Exactly. I’m a new poster here & former lurker (hi ABL!) and am a part of a group of ex-Salonistas who have been driven out by frothing Greenbecks. This is a refreshing place to have somewhere to push back against the Emoprogosphere as they try to out-crazy and out-Obama Derangement Syndrome each other.
Bad enough the Tbags have octupled down against President Obama since Day One; it’s just that more frustrating to see those who are ostensibly on “our” side try to out-ODS each other as i that’s going to accomplish anything other than completely ceding all three branches of government over to the Republicans forever.
Fucking Naderism, how does it work?
Being as you mentioned Greenwald, he didn’t begin writing a column until about 10 years after Kosovo. And thinking many progressives weren’t outraged by Clinton’s constant war criminal behavior – -which was equally as bad as Obama’s? You have a very selective memory. His constant pushing for increased sanctions while children were dying in Iraq was reason enough for the man to be sent to Hague. I personally had two friends who haven’t spoken to me to this day because of my hatred for his personal war and his decision to bomb civiolian targets. . And there was a lot of talk from professional lefties about impeaching Clinton. In fact his Monica affair was probably the best thing he could’ve done to get liberals united. I wanted him out of office but not because of Kenneth Starr.
miketherevelator, you have me all kinds of confused. Are you talking about Kosovo, Iraq, and then Kosovo?
If so, Kosovo – the genocide was okay, then? It sounds like that’s what you are saying.
Iraq – Children dying in the streets because of sanctions? Because of no food or medicines? If that is indeed what you’re implying, I’m of the opinion you’re not being realistic about the situation (yeah, I know, who cares. Iraq was not a poor country, Saddam was back-dooring the oil produced and he chose to spend the money in the way he deemed best – on himself, his family and those in the Ba’ath Party. If children were dying on the streets, that fell on Saddam’s shoulders, not Clinton’s.
If I’ve misunderstood your comment in any way, I apologize in advance.
By the way; despite how Firebags & Greenbeckistanis like to pretend the continent of Europe does not exist & that Obama had unilaterally decided to bomb Baby Jesus Qaddaffi because he’s really a bloodthirsty warmongering Hitleresque Neocon sadist who loves killing brown people for teh lulz; here’s a reality-based BBC audio documentary which gives the behind the scenes backstory of the Libya intervention: http://downloads.bbc.co.uk/podcasts/worldservice/docarchive/docarchive_20110510-1000c.mp3
Note how Obama and the U.S. are portrayed in this, not as cowboy instigators but as reluctant secondary players.
The point is if Eurpose wanted to do this then they should have done this, with out us. Oh wait, they couldn’t they need our muscle, so there we go.
If you are advocating that the U.S. withdraw itself from NATO, then make that argument.
seriously. the thing about the glennbots is, they don’t really know how to critically think beyond War = Bad + I Heart Manning = WIN.
(and welcome, Villemar! Good to have you here!)
I know you can’t be advocating that war=good. But acts of warfare against six countries in 26 months. Isn’t that some kind of record? I mean like Ty Cobb’s lifetime batting average record.
And there’s the obvious BS reason of humanitarian aid and the usual demonizing of Gaddafi and his troops. Check this out — these are our allies — and our CIA –. http://www.obamaslibya.com/
But yes, we’re all just bots who voted and cried when Obama was eleted who all of a sudden woke up one morning and said, ok, that’s ehnough. We hate him hnow. We now hate war, didn’t before. We now hate our president caving in on everything he stood for and watching everybody pretend that’s not the way he wants it but that’s the way it is. We weren’t much on civil liberties before, now we are — all because it’s Obama in the WH.
LIke we’ve become this disgusted BECAUSE WE WANT TO BE?? When Obama and Joe sit down with whoever the leader of these bloodthirsty animals is, and you still attack us, just remember the kind of people he champions. Ahd for one of the writers above, sure, we were pulled into this against our will. Out of the first 1,000 missiles sent into Libya, only 930 were USA. Guess that proves you were right on that one.
Sad to see so many people who abandon their principles because of a leader who abandoned his. And then attack those who don’t. We are so evil, aren’t we? We don’t even bend ourselves into pretzels trying to explain why absolutely anything and everything this man has done that he would have been totally against just three years ago is now fine, okay, needed, no problem, lawful, constitutional blahblahblah. We won’t mention he’s just Bush deja vu all over again. We’ll pretend this is all something new and neccessary.
Obama had unilaterally decided to bomb Baby Jesus Qaddaffi because he’s really a bloodthirsty warmongering Hitleresque Neocon sadist who loves killing brown people for teh lulz
hilarious.
RKR, although you make a good argument, it is only as good as its starting point, which in your case rests on a foundation of sand. We are a nation of laws and we are not a dictatorship. The President, constitutionally, needs the approval of Congress to attack another country. Even GW Bush knew this.
I’m certain you are prepared to show exhaustive documentation of your publicly expressed concerns with legalities for every step taken during GW Bush’s presidency, then.
Here’s what bothers me about this response. You are aware that treaties is part of our laws, right?
mike, chill. I can guarantee not one person here thinks that war is the best thing since apple pie or ice cream or whatever.
Demonizing Gaddafi… no one needed to do that. Unless you think he’s a good guy? Are you suggesting that all Libyan rebels are evil and torturers? I didn’t watch your videos, but if you’ll find some of Libyan soldiers torturing rebels (because realistically you know it’s happening), then I’ll watch both. The name of the url suggests that PBO is responsible for the actions of those specific rebels. Seriously?
Before NATO became involved, where did you stand on Libya? Do nothing or do something? If it was do something, what would that something be?
PBO hasn’t “caved in on everything” and he is exactly who I thought he was when I voted for him. I actually listened to his speeches and read his books. Did you read his books? Did you really pay attention? Election night I told my husband that the extreme left and right were going to be pissed off because he’s not extreme left, that people obviously hadn’t read his books or listened carefully to his speeches. So if didn’t do your homework you have no right to say that he abandoned us. For the record, I have not abandoned my principles.
If you spend a little less time being angry so there will be a bit of time to see the advances that have been made. Maybe then the fire in your eyes won’t be so blinding.
Peace.
Earth to the Left: Obama Is Into You
http://swampland.time.com/2011/06/21/earth-to-the-left-obama-is-into-you/
Nice, he gets it too. Just so tired of all this endless caterwauling and whining and fit-throwing. I think it’s endemic to the blogoshphere…be the guy who whines the loudest and is the most poutraged; you’ll get more attention and more page hits. If the mainstream media is pretty much FUBAR I think the blogoshphere is getting close to being FUBAR itself….kind of the cancer stage of political blogging. Gresham’s Law of Internet Discourse….bad discourse takes over good in a race to the bottom.
We’re at war in 6 countries, Mike? What are you saying we’re at war with Somalia because we shot that one pirate guy?
We’ve been involved in probably over 150 military operations since 1775 with only 5 declared wars.
http://en.wikipedia.org/wiki/Timeline_of_United_States_military_operations
I’m no fan of war myself but if impeaching everyone is the answer then we better go ahead and retroactively impeach all 43 Presidents prior to BHO all the way back to George Washington. I thought maybe Carter might get off the hook, but nope, he did the failed military operation against Iran. Chain him up too, he goes to the Hague along with all the other living Ex-Presidents.
I’m not certain that Mike’s elevator goes to the top floor.
Great post, roadkillrefugee!
Perhaps when we elected the first black President, people thought the entire world would change; no more war, no more poverty, no more disease, and no more racism. Now they’re disappointed to find all that happened is we elected a good man who’s doing the best job possible as President.