Dawn Johnsen, the woman who would have been the head of the Obama administration's Office of Legal Counsel had she not had the gall to vocally oppose torture and the corruption of OLC's independent role under President George W. Bush, takes a hatchet to Eric Posner's "defense" of the administration's process for determining the legality of the Libya intervention under the War Powers Act:
Posner, again characteristically provocative, faults Obama's OLC for not being willing to abandon its judgment that the United States is engaged in "hostilities" in order to back up the president. He speculates that OLC may have taken too seriously the rhetoric of independence, to the detriment of what Posner says is OLC's true role: "Keeper of the Presidential Fig Leaf." Thus, to Posner the best legal interpretation of "hostilities" or "torture" is irrelevant. If OLC wouldn't provide the desired fig leaf of support, the president was free to look to any government lawyer who would.
Simply to describe Posner's position is to discredit it. I have previously elaborated on why the Constitution, the rule of law, and the president himself all are best served by an OLC that strives for accurate, rigorous, and principled legal interpretations. Longstanding tradition and bipartisan consensus support that as OLC's true and great aspiration, if not always its reality.
Johnsen threads a small needle in arguing that the administration's interpretation of the WPR is wrong but that Harold Koh's interpretation of "hostilities" is not comparable to John Yoo's legal opinions authorizing torture.
The outcry against the torture memos, from Republicans and Democrats alike, centered on these very broad claims of absolute executive power and right to secrecy even in disregarding statutory commands. The Obama administration has raised no such threat to the fundamental constitutional balance of powers, and indeed has disavowed the Bush approach. But what about the narrower question of statutory analysis? Is Koh's analysis really just like Yoo's?
To be clear: I disagree with the Obama/Koh interpretation. I believe the 60-day clock continued to run even after NATO took control, with the U.S. government engaging in numerous piloted as well as drone bombings in Libya. But the quality of Koh's analysis is clearly superior to Yoo's, which several law professors have opined would not receive a passing grade in their class. In any event, any mistakes here are an aberration from the Obama administration's pattern of adherence to and restoration of the rule of law.
Johnsen notes some key differences -- the legal debate over torture took place in secret, Obama overruled OLC but did not seek to corrupt its independence, and Koh sought to reconcile his views with the 1980 OLC opinion that determined the WPR was constitutional while Yoo simply pretended it didn't exist. Part of the problem, though, is that even if the administration's actions here are substantively different from Bush, future presidents will be much bolder about simply disregarding OLC's opinion when it doesn't suit them.
Johnsen won't endorse the administration's legal interpretation, even if she's willing to defend them from the "just like Bush" charge. I'm less sympathetic to her argument that Koh deserves a certificate for participation for showing his work while coming to the wrong legal conclusion, but the issue of secrecy isn't trivial -- but for leakers and reporters, we might never have found out about the CIA shunting people off to secret prisons and torturing them. Another reason why prosecuting whistle-blowers is a bad idea.
