President Obama wanted law professor Dawn Johnsen to run the Office of Legal Counsel, a role that would have her advising the administration on whether its policies were legal. Senate Republicans objected to her nomination because she’d been critical of the Bush torture policy, and she eventually withdrew from the process.
Now we get an idea of what she would have told President Obama about the fighting in Libya:
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….
To be clear: I disagree with the Obama/Koh interpretation. I believe the 60-day clock continued to run even after NATO took control… [A]ny 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….
[N]o 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.