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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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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.

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