The New York Times reports:
President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.
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.
Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
A White House spokesman, Eric Schultz, said there had been “a full airing of views within the administration and a robust process” that led Mr. Obama to his view that the Libya campaign was not covered by a provision of the War Powers Resolution that requires presidents to halt unauthorized hostilities after 60 days.
“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”
Still, the disclosure that key figures on the administration’s legal team disagreed with Mr. Obama’s legal view could fuel restiveness in Congress, where lawmakers from both parties this week strongly criticized the White House’s contention that the president could continue the Libya campaign without their authorization because the campaign was not “hostilities.”
Marc Lynch writes:
“There’s no outcry in the country to say ‘comply with the War Powers Act,’ outside of academia.” That’s what Senator John McCain told Foreign Policy in an interview a few weeks ago. How quickly things change. With House Speaker John Boehner presenting an ultimatum for administration compliance with the War Powers Act, and Congressional GOP leaders hinting at defunding the campaign, the demand that the Obama administration obtain Congressional authorization for the operation in Libya has suddenly become front page news. A full-scale battle over Presidential authority looms.
The administration should have secured authorization for the Libya campaign early on, to put it on solid legal and bipartisan political footing. Congressional oversight is as important for the Obama administration as it was during the Bush administration — a point which applies to Libya just as it does to drone strikes and global counter-terrorism operations. They probably didn’t do so because they (correctly) expected that a Congressional resolution authorizing the Libya campaign would come to the President’s desk with riders attached repealing health care reform, reinstating Don’t Ask Don’t Tell, and abolishing Medicare. But politics shouldn’t be allowed to outweigh the importance of effective Congressional oversight and respecting the rule of law.
Beyond the political jockeying, however, the sudden burst of attention to Libya should be an opportunity for the public to take a fresh look at what is actually happening in Libya. This is a good time to realize that the war in Libya was very much worth fighting and that it is moving in a positive direction. A massacre was averted, all the trends favor the rebels, the emerging National Transitional Council is an unusually impressive government in waiting, and a positive endgame is in sight. This is a war of which the administration should be proud, not one to be hidden away from public or Congressional view.
I supported the intervention in Libya reluctantly, in the face of strong evidence of in impending humanitarian catastrophe and an unprecedented, intense Arab public demand for Western action. I believe fully that the NATO intervention prevented a major massacre in Benghazi, which would have guaranteed the survival of the Qaddafi regime. The retaliation campaign which followed the regime’s survival would have been bloodier still. There would have been a chilling effect across the region, encouraging violent repression and demoralizing challengers. And the impact on America’s image in the region of failing to act and allowing the massacre would have been profound. Many of the same people (in the Arab world and in the U.S.) who now lambaste Obama for intervening would have been editorializing about his betrayal of his promises to the Muslims of the world and his indifference to Muslim lives.