I've seen some folks on the left responding to the news that President Barack Obama ignored advice that he needed congressional authorization from Congress to continue operations in Libya from Attorney General Eric Holder, Pentagon General Counsel Jeh Johnson, from the Office of Legal Counsel offered by Caroline Krass, characterizing the issue as just another executive branch disagreement. John Cole wrote, “In other words, he got conflicting legal advice, and went with [State Department Legal Adviser Harold] Koh and [White House Counsel Bob] Bauer over Johnson and Krass.”
I think this minimizes the magnitude of the president's decision.
A little background: The Office of Legal Counsel provides the executive branch with legal advice that is meant to ensure that the executive branch stays within the law. During the Bush administration, this role was twisted as the OLC became politicized, going from the first line of defense against executive overreach to in some cases merely becoming a rubber stamp for dangerous expansions of executive power. As Jane Mayer wrote in The Dark Side, having John Yoo at OLC was like “having a personal friend who could write medical prescriptions.”
Apparently Obama didn't have a hack at OLC who would just write what he wanted to hear, (although as Marcy Wheeler points out, the OLC’s memo authorizing operations appears to have been written after the fact). Nevertheless, as Jack Balkin writes, Obama appears to have tried to circumvented the regular process through which OLC offers advice in order to get the opinion he wanted.
Obama's practice is different, but it has disturbing similarities. Normally, Obama would have asked the OLC for its opinion, and as noted above, the OLC would have polled legal expertise in various agencies, consulted its precedents, had long discussions, and then come up with a scholarly opinion that is normally binding on the executive branch. Instead, Obama routed around the OLC, asking for opinions from various lawyers, including the White House Counsel and the Attorney-Advisor for the State Department. It is difficult to escape the conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC.
Obama's strategy, like Bush's, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.
It's good news that OLC isn't staffed with hacks, but it's irrelevant if the president just ignores OLC's advice. As Balkin notes, “The President may disregard the OLC without violating the Constitution,” but doing so sets a dangerous precedent, because the entire point of OLC is to ensure that the executive branch is complying with the law. Even if one believes that Obama is right on the merits regarding his obligations under the WPR, the fact that he ignored OLC's advice on the matter empowers future presidents to do the same. As Charlie Savage wrote, it is “extraordinarily rare” that presidents overrule OLC. That’s exactly why the Bush administration went through so much trouble to get the "advice" it wanted.
Moreover, all legal advice is not created equal. The White House Counsel is too close to the president to offer objective legal advice on something like this—as Jack Goldsmith, the former Bush-era head of OLC who withdrew Yoo’s torture memos writes, “Bob Bauer is a smart man but neither he nor his office is expert in war powers or situated to offer thorough legal advice on the issue.” As Glenn Greenwald notes, this decision parallels the one made by Bush to ignored the legal advice of most of his top attorneys regarding the legality of his warrantless wiretapping program.
Koh was the only relevant holdout, and his argument that bombing Libyan dictator Moammar Ghadafi’s forces don’t amount to “hostilities” under the WPA largely because American personnel aren’t in danger isn’t merely unpersuasive, but again paves the way for unilateral uses of force by future presidents. When the future of American warfare is flying robots, saying it’s not a war when only drones and aircraft are involved blatantly circumvents the Founders’ intentions when they vested the authority to declare war with Congress.
I don't know the underlying reasons why Obama made this decision. Maybe he was worried that Republicans would demand more political concessions in exchange for a vote. Maybe the administration was worried about pressing Democrats to vote for an unpopular military intervention. Perhaps Obama feared that the vote would fail, and force him to leave the Libyan rebels at the mercy of a brutal dictator. Maybe he's simply changed his mind about the president's war powers. I have no idea. But I know that none of the above reasons justify his decision to disregard the advice of his top lawyers on the WPR. That decision has brought us one step closer to an executive branch unbound by the rule of law, and the potential long term consequences of that simply aren't worth not simply sucking it up and going to Congress.
