The Decider In Chief

This is pretty fucking unbelievable:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

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 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.

Holder was of the same opinion as Krass. But Obama really didn’t need lawyers to tell him this; he’s a Constitutional law professor. He knows that the OLC was right. But he decided to override their opinion anyway.

The claim within the Administration is that we are mainly providing refueling and surveillance and the Libyans aren’t shooting back, so we’re not really engaged in “hostilities”. But this is precisely the kind of legal hair-splitting that drove me nuts with the last Administration. If there is any doubt, go to Congress. Respect the law.

The big question — the one that Glenn Greenwald asked on Twitter — is why? Why are they playing these kind of legal reindeer games instead of just going to Congress? It’s very likely that they would have gotten the authorization they wanted and diffused the whole controversy. Greenwald attributes it to hubris and the love of executive power. I would go further. This is another hammer tap on the wedge into the Constitutional limitations of the office. Obama is pushing the boundaries further than Bush did, expanding the power of his office just one more degree. He does this so that he can push it even further in the future.

This is why it’s critical that Congress push back on this. As Lee said so often, the problem with the powers the President is assuming is what they mean for the next guy and the next guy. But it’s more than that. The problem is what happens with the next issue, the next issue and the next issue. If Obama can bypass Congress on war, he can bypass them on a lot more.

Maybe that’s the idea.

Comments are closed.

  1. Mississippi Yankee

    I find it unbelievable that you find it unbelievable Hal. Have you not heeded the warnings here and just about everywhere for the past three years?

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  2. AlexInCT

    I am with MY on this. I am more astounded that Hal finds this unbelievable than the fact Obama is doing this. All through the time the left kept telling us how Bush was an evil fascist that was avoiding the will of the people – while he was prostrating himself to congress and the UN to get them to go along and wasting valuable time – I kept wondering if these people had forgotten the Clinton years and the myriad of occasions he had done whatever he wanted and then told his critics he had the power as the C in C to do it. Now their guy is in charge, and but for a few token people – people I can not help suspect are now “showing” anger simply because they painted themselves in a corner with Bush, and aren’t able to do what you average leftist does, which is to simply pretend they never had a 180 degree stance on something when it was politically expedient for them – they remain mum.

    Want to really surprise me? Have the MSM admit they have a double standard on this and that’s why they aren’t pursuing the story with the vigor they had for when it was Bush. That will astound the bejesus out of me.

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  3. hist_ed

    There is another honest route he could have taken-simply stake out the position that the War Powers Act is unconstitutional. Most (Maybe all) presidents since its passage have said that. It’s a legitimate argument that leaves the power of the purse as a means to limit presidential war making.

    This little kerfuffle is just another in a long series of “What’s the upside” moments for this administration. Remember when we dissed the UK in Obama’s opening months? Pissed off our closest ally for no reason. So what’s the upside? Hell if I can figure that out.

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  4. HARLEY

    I honelsty do know know if the War Power act is un-constitutional, it dependss seem to interfere with the executive duty’s to protect and defend, but do that give them Carte blanche to order troops into combat action with out Congress declaring WAR, officially, the last time Congress did so was WW2.

    What this comes down to is , If Congress is truly against this Libyan adventure, then they, with the power of the purse, can defund the operations.
    Its time to Man up congress, both Dems and Reps.

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  5. Rann

    That’s the thing, he thinks that he can keep up the balancing act that he had when he was a Senator. Go to meetings with Republicans and make agreements with them to seem bipartisan, turn against them when the time comes to seem loyal to your party. Vote “present” a lot on anything that’s too controversial. Snark out a glib witticism whenever it would get you plenty of airtime. Call it a day.

    He figured he could do the same one-two with this. Avoid actually asking for permission for military action so that he wouldn’t seem like Bush, but duck out of actually making a stand on it. Basically he was hoping no one would notice that he’d actually gone to war, and asking for congressional approval or making a stand would have done that either way, so he tried to just coast along, hope everyone would stop paying attention, then ask for it after the fact.

    He really doesn’t get that the sheer amount of visibility he has now negates a lot of his old slick maneuvers.

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