June 20, 2011
More on Legality of Libyan Campaign
President Obama has come under attack again for military action in Libya, this time in response to Charlie Savage's report in the New York Times on Friday that he bipassed ordinary processes and selectively adopted legal advice from top administration lawyers on the legality of the action. (We last posted here, when the administration released its report, United States Activities in Libya, briefly outlining its legal position.)
Bruce Ackerman criticized the process in the NYT; Jack Goldsmith criticized it on Lawfare; and Jack Balkin criticized it on Balkinization. The common theme: President Obama sidestepped the OLC, and cherry-picked advice from top administration lawyers, on the question whether the Libyan campaign was a "hostility," thus triggering the War Powers Resolution--and he shouldn't have. (The one publicly available OLC memo on the Libyan campaign carefully avoids the question.)
According to Savage, the acting head of the OLC and chief Pentagon lawyer agreed that U.S. military activities in Libya constituted "hostilities" under the WPR; if so, President Obama would have had to get congressional approval or terminate the activities. But the White House counsel and senior State Department lawyer disagreed: they said that U.S. military activities in Libya were not "hostilities" under the WPR; if so, the WPR wouldn't apply, and President Obama would neither have to gain congressional approval nor terminate the activities. According to Savage, President Obama relied upon the latter advice, not even asking OLC for a formal opinion on the question, forum shopping among top administration lawyers and contravening standard executive branch practice (in which the OLC collects the views of different agencies and lawyers and then arrives at its own view of the best interpretation of the law).
Critics compare the process to the legal shenanigans in the Bush administration that resulted, e.g., in the torture memos.
Nothing requires the President to agree with the legal advice of the OLC, or to seek that Office's advice alone. But through custom and practice, Presidents have turned to the Office for the definitive legal position of the executive branch. President Obama's selective advice-seeking certainly appears to contravene that custom and practice. That (alone) doesn't make the President's action in Libya illegal. (The legality of the action is independent of the advice or process the President relied upon.) But it does raise the suggestion that the President has cherry-picked advice to get the result he wanted--exactly the problem that led to bad legal opinions in the Bush administration, just as President Obama's critics claim.
At the same time, House Speaker John Boehner announced that he will introduce two competing resolutions on Libya, one to authorize continued limited activities (using the language of Senator McCain's resolution in the Senate), and the other to require U.S. withdrawal under the WPR. The move is clearly intended to force the House to adopt a position on Libya and to put House members on record. But that's all it will do, at least for now.
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