Saturday, June 18, 2011
President Obama’s illegal and unconstitutional war in Libya just became much more serious with the revelation that the president jettisoned the opinions of its top lawyers at the Pentagon and the Justice Department and decided he had the legal authority to continue U.S. military participation in Libya without Congressional authorization.
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 1973 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.
President Obama’s reinterpretation of the 1973 War Powers Resolution was sent to Congress late Wednesday. On Thursday, the House Speaker, John Boehner (R-OH) was not satisfied and demanded to know whether the Office of Legal Counsel had agreed.
“The administration gave its opinion on the War Powers Resolution, but it didn’t answer the questions in my letter as to whether the Office of Legal Counsel agrees with them. The White House says there are no hostilities taking place. Yet we’ve got drone attacks under way. We’re spending $10 million a day. We’re part of an effort to drop bombs on Qaddafi’s compounds. It just doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities.”
Speaker Boehner suggested on Thursday that President Obama’s bizarre assertion that the 1973 War Powers Resolution does not apply to U.S. efforts to depose and kill Libyan dictator Muammar Muhammad al-Gaddafi means the Congress may be forced to use the “ultimate option” and exercise its “power of the purse” to defund the U.S. mission.