Here is my take, just published on Slate, on the Obama administration's (incorrect) interpretation of "hostilities" in the War Powers Resolution re Libya, and the flawed process by which the Office of Legal Counsel and the AG's legal determinations reportedly were rejected.

jurisprudence

Different Kinds of Wrong

The difference between Obama's Libya policy and Bush's torture policy.

By Dawn Johnsen
Posted Tuesday, July 5, 2011, at 6:17 PM ET

Contrary to the Obama administration's legal interpretation, recent military operations in Libya—which include repeated piloted and drone air attacks—should be treated as "hostilities" under the War Powers Resolution. This is reportedly what the Justice Department's Office of Legal Counsel advised. Yet the president rejected this view, instead siding with that of the State Department and White House counsel's office.

This series of events, if true, is seriously flawed. But some critics have gone overboard, especially those who draw analogies to the Bush administration's disregard for the rule of law and its flawed legal interpretations of the federal statute criminalizing torture. Some commentators even are equating State Department Legal Adviser Harold Koh with John Yoo, the former deputy at OLC in the Bush administration who is credited with OLC's most infamous legal advice. Whether from the right or left, these comparisons are dangerously misguided and threaten important lessons we could learn from both episodes.

From the right, Eric Posner provocatively describes Koh and Yoo as "two peas in a pod." To Posner, the pod is good. Both Yoo and Koh, he argues, acted properly as government lawyers to advance their presidents' policy preferences, through legal interpretations that were appropriately driven by desired results. Posner's defense of Koh's stance on Libya thus seeks to rehabilitate Yoo for his stance on torture. From the left, Bruce Ackerman—a fierce critic of Yoo's—suggests that the Obama precedent might actually be worse than the "torture memos." Ackerman argues that at least the right office—the Office of Legal Counsel in the Department of Justice—issued the flawed torture interpretations.

Yoo's infamous memos on torture and other subjects, you'll recall, made sweeping claims of presidential authority to act contrary to clear federal statutory commands, based on a radical view of the president's constitutional war powers. This view denies Congress the ultimate authority to prohibit torture, no matter how clearly defined, where the president as commander-in-chief deems it warranted. More, Yoo's legal claims—and the Bush administration's executive actions—were kept hidden from the public and ultimately were revealed only through government leaks.

That extreme and secret claim of a sweeping authority to violate statutes simply has nothing in common with the Obama administration's very public engagement on the meaning of a controversial provision of the War Powers Resolution: its requirement that, after 60 days, the president must terminate military action not specifically authorized by Congress. Since its enactment, interpretation of the "60-day clock" has been the subject of repeated public debate between the executive branch and Congress. Here, Obama is openly joining that debate, but expressly is not challenging Congress' legislative authority to establish limits on his conduct of war.

President Nixon vetoed the War Powers Resolution because he believed the 60-day clock interfered with the president's war powers. Congress disagreed and overrode his veto, and a published 1980 OLC opinion (correctly) found the 60-day clock constitutional. The Obama administration asserts that the 1980 memorandum remains in force and that it is not challenging the constitutionality of the War Powers Resolution. By contrast, in one of his memos, Yoo baldly states—without authority or any reference to the contrary 1980 OLC opinion—that neither this nor any other statute "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."

The outcry against the torture memos, from Republicans and Democrats alike, centered on these very broad claims of absolute executive power and right to secrecy even in disregarding statutory commands. The Obama administration has raised no such threat to the fundamental constitutional balance of powers, and indeed has disavowed the Bush approach. But what about the narrower question of statutory analysis? Is Koh's analysis really just like Yoo's?

To be clear: I disagree with the Obama/Koh interpretation. I believe the 60-day clock continued to run even after NATO took control, with the U.S. government engaging in numerous piloted as well as drone bombings in Libya. But the quality of Koh's analysis is clearly superior to Yoo's, which several law professors have opined would not receive a passing grade in their class. In any event, any mistakes here are an aberration from the Obama administration's pattern of adherence to and restoration of the rule of law.

What's especially concerning about the Libya legal determination is the process by which it was reportedly reached, deviating from the traditional process by which OLC formulates legal advice for the executive branch. The administration has not contradicted reports that the more politically oriented White House counsel's office played the role historically reserved for the attorney general and OLC. Also troubling are the prescriptions for change offered by Posner and Ackerman.

Posner, again characteristically provocative, faults Obama's OLC for not being willing to abandon its judgment that the United States is engaged in "hostilities" in order to back up the president. He speculates that OLC may have taken too seriously the rhetoric of independence, to the detriment of what Posner says is OLC's true role: "Keeper of the Presidential Fig Leaf." Thus, to Posner the best legal interpretation of "hostilities" or "torture" is irrelevant. If OLC wouldn't provide the desired fig leaf of support, the president was free to look to any government lawyer who would.

Simply to describe Posner's position is to discredit it. I have previously elaborated on why the Constitution, the rule of law, and the president himself all are best served by an OLC that strives for accurate, rigorous, and principled legal interpretations. Longstanding tradition and bipartisan consensus support that as OLC's true and great aspiration, if not always its reality.

Ackerman shares and has helpfully expounded on this ideal. But he believes OLC, led as it is by political appointees, is institutionally ill-suited to achieve it—especially when the president does not want to be so constrained. Although reports are that OLC did seek to constrain the president and enforce the 60-day clock in Libya, Ackerman uses the occasion to promote his earlier proposal to strip OLC of its central functions and transfer them to a new, "independent" legal tribunal within the executive branch.

Ackerman raises some worthwhile alarms, including those about the recent expansion of the size and influence of the White House counsel's office. But his proposal to supplant OLC is ill-advised and unworkable. The complex reasons are well-addressed by former OLC and White House lawyer Trevor Morrison, and the Libya events help make the point. In this type of fast-moving situation, the president ideally would receive accurate advice from a trusted source, from the earliest days and throughout as facts changed on the ground.

Contrary to Posner's insinuations, no one is suggesting the president lacks the authority to reject the views of the Department of Justice. But presidents only rarely ever have, and for good reason: When they do, they should follow traditional processes that ensure they are acting on the best legal interpretations and inspire public confidence that they are not seeking simply to justify desired policy outcomes. Ideally, the president first should meet personally to discuss any disagreement with the head of OLC and the attorney general, and not have their legal views filtered through the White House counsel.

Whatever its flaws, the Obama administration's interpretation of the War Powers Resolution is plain for all to see. It's high time for Congress to exercise its own constitutional authority, as encouraged by the War Powers Resolution, and authorize the Libya operation with whatever conditions it sees fit—conditions that this administration, in contrast to the last, recognizes its constitutional obligation to honor.

Congress should also codify its understanding of the terms of the War Powers Resolution. A pending Senate resolution, which as amended by Sen. Richard Lugar specifies that hostilities have been ongoing, would accomplish both goals. Both houses of Congress should approve that resolution with dispatch, and the Obama administration, and successive administrations, should welcome it. The separation of powers depends on a responsible, constructive dialogue between the president and Congress.

Dawn Johnsen is a professor of law at Indiana University's Maurer School of Law. She led the Office of Legal Counsel during the Clinton administration and was President Obama's first nominee to head OLC, but withdrew in April 2010 after 15 months without a Senate vote.

Article URL: http://www.slate.com/id/2298436/