We now have an innovation in executive power. During the Bush Administration, mid-level functionaries would be found to write legal justifications for waging war, committing acts of torture, or what have you. Now, during the Obama Administration, the top lawyers are free to give their considered opinion on these issues. But the President will simply overrule them, as Charlie Savage writes today:
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.
Let’s break this down. I saw Charlie Savage when he was on a book tour a few years ago, and he accurately described the Office of Legal Counsel as the Supreme Court of the executive branch. These are legally binding decisions that OLC makes, and while Presidents can override them, it pretty much never happens. This is quite literally the equivalent of Andrew Jackson’s statement to Justice Marshall, “John Marshall has made his decision: now let him enforce it!”
Glenn Greenwald writes:
Just imagine if George Bush had waged a war that his own Attorney General, OLC Chief, and DoD General Counsel all insisted was illegal (and did so by pointing to the fact that his White House counsel Alberto Gonzales and a legal adviser at State agreed with him). One need not imagine this, though, because there is very telling actual parallel to this lawless episode […]
Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney’s top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush — wanting to avoid that kind of scandal in an election year — agreed to “re-fashion” the program into something those DOJ lawyers could approve (the “re-fashioned” program was the still-illegal NSA program revealed in 2005 by The New York Times; to date, we still do not know what Bush was doing before that that was so illegal as to prompt resignation threats from these right-wing lawyers).
That George Bush would knowingly order an eavesdropping program to continue which his own top lawyers were telling him was illegal was, of course, a major controversy, at least in many progressive circles. Now we have Barack Obama not merely eavesdropping in a way that his own top lawyers are telling him is illegal, but waging war in that manner (though, notably, there is no indication that these Obama lawyers have the situational integrity those Bush lawyers had [and which Archibald Cox, Eliot Richardson and William Ruckelshaus had before them] by threatening to resign if the lawlessness continues).
I would imagine that Dawn Johnsen, if she were ever confirmed to run OLC, might have resigned, but the decision clearly would have been the same. I imagine, however, that she also would have delivered a more formal opinion, unlike the way Savage described this, as how OLC was “asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies.”
Glenn’s obviously all over this, and he characterized the decision as a pure power grab, when the Congress would probably have given sanction to the Libyan operation anyway, especially if they merely followed the guidelines. This is about to explode, in my view.