This week several members of Congress challenged Obama on the legality of the Libya war, given that actions have exceeded the( 90) 60 day period during which The White House doesn’t need Congressional authority for military action under the War Powers Act, after which troops have 30 days to get out.
The White House response: We don’t need Congressional approval because this is not technically a hostile action (because we don’t have ground troops in Libya).
Tonight the NYT has a major bombshell: Two top lawyers — Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, acting head of the Justice Department’s Office of Legal Counsel — told The White House otherwise.
Even Attorney General Eric Holder sided with Krass.
But Rather than heed their advice, he instead went with two lawyers with views more favorable to him: Bob Bauer (who is internal at The White House), and State Department advisor Harold Koh.
This is striking:
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.
No doubt this will only embolden the bi-partisan group of Congressmen who think the war at this point is illegal.
And of course one can only imagine how news like this would have gone down under the Bush administration.
All that being said, Obama does have the support of serious lawyers, and he himself was a constitutional lawyer, so the idea that just because Johnson and Krass opposed this decision doesn’t in itself end it.
But this is still tough.
For some context, see this American Conservative story (from last June) on the war philosophy of Harold Koh, a renowned liberal legal scholar who also has a history of justifying hostile activity.
At the end of March, Harold Koh, top lawyer at the State Department, used his keynote address at the annual confab of the American Society for International Law to make an announcement: the use of Unmanned Aerial Vehicles to kill suspected terrorists is legal. The drone strikes in Pakistan and Afghanistan are lawful because, Koh delineated, they are done only in national self-defense, their proportionality is always precisely calibrated, and they carefully discriminate civilians from combatants.
There’s both more and less to it than that, but the legal argument itself is of minor importance. What matters is that Koh said it. Harold Hongju Koh: renowned human rights advocate; leading theorist of international law (which, the ASIL conventioneers would happily have told you, is much more civilized than mere national law); until last year dean of Yale Law School and therefore unofficial pope of the American legal system, and former director of the school’s Orville H. Schell Jr. Center for International Human Rights; Obama appointee accused by Glenn Beck and likeminded screamers of wanting to smuggle Sharia law into U.S. courts. All of which is to say, if a liberal lion like Harold Koh says drone strikes are lawful, what more do you need to know?