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President Obama Rejects Justice Department's War Powers Interpretation

6:00 AM, Jun 19, 2011 • By ADAM J. WHITE
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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.  

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