Home > Government, Law, War > War Is What I Say It Is

War Is What I Say It Is

A few days ago, I wrote about the White House’s justification for continuing the war in Libya without the Congressional authorization that the War Powers Act would appear to require. As explained in the NYT article by Charlie Savage and Mark Landler, Harold Koh, the State Department legal adviser, and Robert BAuer, the White House counsel, argued that “American forces had not been in ‘hostilities’ … They argued that United States forces are at little risk because there are no troops on the ground and Libyan forces are unable to exchange fire with them meaningfully.” (See Ted Rall’s representation of this concept above.)

On the front page of yesterday’s NYT, Charlie Savage followed up with a piece on how Bauer and Koh won Obama’s ear, and the day, despite counter-arguments by

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, [who] 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.

Savage goes on to explain that “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.”

Only in the penultimate paragraph does Savage reveal the the stunning news that “Other high-level Justice lawyers were also involved in the deliberations, and Attorney General Eric H. Holder Jr. supported Ms. Krass’s view.”

President Bush listened to his OLC, but then he made sure to appoint hacks who told him whatever he wanted, most notably by re-defining torture so that whatever he wanted to do wouldn’t count. I don’t know what’s worse, Bush’s approach or Obama’s: just keep asking around until you hear what you want, then ignore the OLC and your attorney general.

The rule of law continues to wither away.

Categories: Government, Law, War
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