Welcome to Sanctimonious Sunday, a new series that will be published by members of the following groups: The Amateur Left, Team DFH and Frustrati, as a collaboration of sorts. Feel free to get your sanctimonious on. It's welcome here.
Yesterday we learned that President Obama's top legal advisors told him that he needs to go to Congress for authorization to use US military forces in the Libyan war, and that he ignored their advice when he gave that report to Congress saying that the War Powers Act did not apply and that he would continue with no approval or funding from Congress.
Charlie Savage, New York Times :
2 Top Lawyers Lost to Obama in Libya War Policy Debate
WASHINGTON — 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.
Obama rejects top lawyers' legal views on Libya
He reveals that top administration lawyers -- Attorney General Eric Holder, OLC Chief Caroline Krass, and DoD General Counsel Jeh Johnson -- all told Obama that his latest, widely panned excuse for waging war without Congressional approval (that it does not rise to the level of "hostilities" under the War Powers Resolution (WPR)) was invalid and that such authorization was legally required after 60 days: itself a generous intepretation of the President's war powers. But Obama rejected those views and (with the support of administration lawyers in lesser positions: his White House counsel and long-time political operative Robert Bauer and State Department "legal adviser" Harold Koh) publicly claimed that the WPR does not apply to Libya.
As Savage notes, it is, in particular, "extraordinarily rare" for a President "to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice."
(Emphasis added)
Obama Ignored Advice of Top Legal Advisors, OLC in Waging War in Libya
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.
(Emphasis added)
When a President Goes Against His Top Legal Advisors
Greenwald brings up a recent example, a parallel, when a president ignored and went around his top legal advisors and what the outcome was. When Deputy AG James Comey and the Chief of the Office of Legal Counsel Jack Goldsmith told Bush that his warrantless wiretapping program was illegal and refused to certify it, Bush did something similar to what Obama is doing now. He went to his White House Counsel, Alberto Gonzales and Cheney's lawyer, David Addington, and the infamous hospital scene was what followed.
Bush sent Gonzales and Andy Card to the hospital where Ashcroft had just come out of surgery and intended to strong arm him into signing the certification. When Comey got wind of this he rushed to the hospital, putting the flashing light and siren on his car for the first time in his career. He called FBI Director Mueller and told him to rush to the hospital too, and they both prevented Gonzales from maneuvering to get Ashcroft to sign the certification.
But that wasn't the end of the story. Bush was in a bind. His program needed to be certified or it would be stalled/ended, but he intended to continue the program anyway, defying his lawyers and the rules for the needed certification. At that point, all three of them, Ashcroft, Comey and Mueller threatened to resign en masse. These are men who, in my opinion and in the opinion of most progressives, I would guess, are not men of the highest integrity. But they did insist that the president follow the law, and if he continued to refuse to follow the law, against their advice, they were ready to resign. They had some respect for the rule of law.
Will Holder, Krass and Johnson threaten to resign en masse if Obama continues to refuse to go to Congress for authorization and funding for his Libyan war? How much integrity do they have? How much respect for the rule of law do they have?