When the White House announced last week that it would not comply with the requirements of the War Powers Resolution because the Libya operation does not involve "hostilities," eyebrows arched in curiosity. Many observers questioned the administration's conclusion that America's involvement in the Libya operation no longer fit within the statute's term "hostilities." (The administration's explanation is found on page 25 of this White House report.)
But even more curious was the White House's explanation of how the administration reached this conclusion. Rather than releasing a memorandum from the Justice Department's Office of Legal Counsel (OLC)—as it did at the outset of the military campaign—the administration offered no specific source for its legal conclusions. Instead, the White House's report simply stated that "the President is of the view that" the War Powers Resolution does not apply.
The New York Times's Charlie Savage—who made his name covering the Bush White House's internal debates over the Constitution and the Global War on Terror—immediately picked up on this:
It was not clear whether the Justice Department had endorsed the White House’s interpretation of hostilities. [White House Counsel Bob Bauer] declined to say whether it had signed off on the theory, saying he would not discuss interagency deliberations. In his letter on Tuesday, Mr. Boehner demanded to know whether there was internal dissent about the administration’s legal stance.
Or as Jack Goldsmith succinctly put it: "This is odd." Goldsmith—who was at the center of the Bush-era OLC debates—guessed that "OLC or DOJ has problems of some sort with the Administration’s legal theory."
The speculation was short lived. Yesterday morning the New York Times confirmed that the White House's interpretation of the War Powers Resolution was, in fact, rejected by both the Office of Legal Counsel and the Defense Department:
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.
This is an extraordinary story, for several reasons:
1. It reveals the desperate extent to which President Obama is willing to stretch his position to avoid agreeing with the modern conservative position that Congress has specific constitutional tools for limiting the president's war power—most importantly, the power of the purse, and the power to hold up executive and judicial nominations and obstruct other administration priorities—but statutes like the War Powers Act are not among them.
Rather than conceding that point—and thus flatly contradicting his own campaign rhetoric—he has adopted the strained "view" that American armed forces are not still engaged in "hostilities or ... situations where imminent involvement in hostilities" (i.e., the War Powers Resolution's triggering requirement), even though (by the White House's own characterization) U.S. strike sorties are contributing to "the suppression of enemy air defense," as well as a majority of the coalition's refueling assets.
Of course, the president has power to interpret the statutes he administers. But, in this case, his interpretation fails to pass the snicker test. As Goldsmith put it (at Lawfare blog, which he co-edits with Ben Wittes and Bobby Chesney), "common sense suggests that firing missiles from drones that kill people over an extended period of time pursuant to a U.N.-authorized use of force constitutes 'hostilities.'” The Office of Legal Counsel and Pentagon apparently agree with Goldsmith.
2. Second, it highlights the president's willingness to evade the ordinary legal decision making process in order to reach his favored conclusion. Savage reports that the administration decided not to follow the ordinary course of business; rather than asking OLC for an opinion and leaving OLC to canvas the other administration stakeholders, the administration requested OLC's "thoughts in a less formal way to the White House, along with the views of lawyers at other agencies," which were then presented to the president as rival viewpoints. As Goldsmith again notes, "This is not a process designed to produce a sound legal decision ... When the President effectively decides the legal question in the first instance based on the input of interested agencies, his legal judgment is inevitably skewed a great deal by wanting to uphold his policy." (Savage notes that President Clinton's OLC chief, Walter Dellinger, also criticized this out of the ordinary process.)
And to be clear, this is not the first time that the Obama administration skewed this process to achieve the president's own ends. In 2009, Attorney General Eric Holder was displeased with the OLC's conclusion that Congress cannot constitutionally give the District of Columbia a vote in the House of Representatives. But rather than abide by OLC's judgment, Holder sought the solicitor general's affirmation that the Justice Department could, at the very least, try to defend the bill in court.
3. Speaking of Holder, at his 2009 confirmation hearing, he said that OLC opinions "reflect the best opinions of probably the best lawyers in the [Justice Department] as to where the law would be, what their opinions should be. It will not be a political process, it will be one based solely on our interpretation of the law." Given that President Obama's interpretation of the War Powers Act rejected the best DOJ lawyers' best opinions, the president surely relied on towering legal minds ... right?
Not quite. Savage identifies by name only two lawyers who convinced the president that America's Libya operations do not involve "hostilities." The first is White House counsel Bob Bauer. Bauer is well known as an excellent campaign finance lawyer; he was the Obama campaign's general counsel, and President Obama's personal attorney. But he is not particularly well known for his expertise on other constitutional issues, let alone matters of national security law. And just two weeks ago, he announced that he would soon leave the White House to resume his role as the Obama campaign's general counsel.
President Obama's other favored lawyer, Harold Koh, leaves many scratching their heads. Koh, former dean of the Yale Law School, is a well known—in legal circles, probably the best known—critic of presidential war power. His new support for a War Powers Resolution interpretation endorsing unlimited presidential authority to engage Libya-style conflicts is at first glance a startling departure from his record. It is virtually impossible to believe that he would have endorsed this position during Bush’s presidency.
Goldsmith attributes Koh's surprising new position to either (1) Koh's willingness to advance legal positions he does not actually believe, in support of his client (i.e., the State Department), or (2) Koh's implicit belief that the constitutional rules governing the president's war powers don't apply with equal force when the military operations are humanitarian ones.
Either theory has merit. In a speech to the liberal American Constitution Society last week, Koh said that as a government lawyer he is willing to espouse positions that he does not personally believe.
Still, I think that the better answer is number two, and Koh has hinted at this in his previous work. In his 2006 article criticizing of President Bush as "torturer in chief," Koh sketched out a three-part "vision" of the president's war powers. The first two parts were broad platitudes: the three branches of government "share power" with respect to national security, and "human rights norms are universal." In addition to those two vague statements, Koh added the third requirement that the president's war powers should be "strictly construed," and justified by "compelling government interest," whenever the president's military actions threaten human rights. But Koh included no such requirement for "strict construction" of president power when the military action in question would promote human rights. Koh's new support for the president's broad reading of the War Powers Resolution in the Libya context strongly suggests that the omission was not accidental.
4. None of this should detract from the fact that President Obama deserves credit for seeing the Libya operation through to completion. President Obama might refuse to admit that the Bush administration was right about presidential power, and to that end the White House can assert that its extraordinary procedural irregularities and implausible statutory interpretations were simply the normal course of business. But the rest of us, including John Yoo, know how to call a spade a spade.
Adam J. White is a lawyer in Washington, D.C.