Obama and the legality of Libyan War

Book Recommendation: Fixing the War Powers Act (The Heritage lectures)
Bruce Ackerman's article is worth reproducing. The issue of presidential powers vis a vis the Congress on the issue of war has been the subject of much debate. Here are a few excerpts which I found enlightening:

Last Sunday was the 90th day of bombing in Libya, but Mr. Obama — armed with dubious legal opinions — is refusing to stop America’s military engagement there. His White House counsel, Robert F. Bauer, has declared that, despite the War Powers Act, the president can continue the Libya campaign indefinitely without legislative support. This conclusion lacks a solid legal foundation. And by adopting it, the White House has shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years.

Since the 1930s, it has been the job of an elite office in the Justice Department — the Office of Legal Counsel — to serve as the authoritative voice on matters of legal interpretation. The approximately 25 lawyers in this office write legal opinions after hearing arguments from the White House as well as other executive branch departments.
But not this time. After Caroline D. Krass, acting head of the Office of Legal Counsel, told the president that he had to abide by the act’s requirements, the White House counsel decided to pre-empt the Justice Department’s traditional role. As the war powers deadline approached, Mr. Bauer held a series of White House meetings at which he contested the Office of Legal Counsel’s interpretation and invited leading lawyers from the State Department and the Pentagon to join him in preparing competing legal opinions for the president.

This pre-emptive move was not unprecedented. During George W. Bush’s administration, shortly after 9/11, the White House counsel, Alberto R. Gonzales, led an ad hoc war council that included State and Defense Department officials. It was in this hyper-politicized setting that John Yoo, representing the Office of Legal Counsel, prepared his notorious “torture memos” for President Bush’s approval.

The players are different this time around, but the dynamic is the same. Mr. Obama is creating a decisive and dangerous precedent for the next commander in chief, who is unlikely to have the Harvard Law Review on his résumé.

From a moral perspective, there is a significant difference between authorizing torture and continuing a bombing campaign that may save thousands of Libyans from slaughter by Col. Muammar el-Qaddafi. But from a legal viewpoint, Mr. Obama is setting an even worse precedent.

Although Mr. Yoo’s memos made a mockery of the applicable law, they at least had the approval of the Office of Legal Counsel. In contrast, Mr. Obama’s decision to disregard that office’s opinion and embrace the White House counsel’s view is undermining a key legal check on arbitrary presidential power.

This is a Beltway detail of major significance. Unlike the head of the Office of Legal Counsel, the White House counsel is not confirmed by the Senate — which means that the president can appoint whomever he likes. Some presidents have picked leading legal statesmen like Lloyd N. Cutler, who served both Jimmy Carter and Bill Clinton. But others have turned to personal friends to fill the office. In such cases, it is especially difficult for the White House counsel to say no to a top presidential priority on the grounds that the law prohibits it.

Mr. Bauer is not the only administration lawyer to conclude that the billion-dollar bombing campaign in Libya does not amount to “hostilities” under the War Powers Act. The State Department’s legal adviser and former Yale Law School dean, Harold H. Koh, has also taken this position. This is surprising, since Mr. Koh’s legal scholarship over the years has been highly critical of presidential overreach on matters of national security, emphasizing the importance of Congress’s constitutional powers over war and peace.

If the precedent Mr. Obama has created is allowed to stand, future presidents who do not like what the Justice Department is telling them could simply cite the example of Mr. Obama’s war in Libya and instruct the White House counsel to organize a supportive “coalition of the willing” made up of the administration’s top lawyers. Even if just one or two agreed, this would be enough to push ahead and claim that the law was on the president’s side.

Read more at : http://www.nytimes.com/2011/06/21/opinion/21Ackerman.html