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.