Justice Goes to Not-War by Scott Horton

[Jefferson23]

April 12, 2011

In 2004, a group of prominent alumni of the Justice Department’s once-prestigious Office of Legal Counsel, shaken by disclosure of the torture memoranda and other evidence of unethical conduct within the office, signed a statement of principles to guide the Justice Department’s opinion writers. “When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies,” they wrote. “The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’ s constitutional obligation to ensure the legality of executive action.” Have the new tenants at Justice lived up to these principles? Not so much. Thursday night the Justice Department released the first really important national security opinion of the Obama presidency. Did Barack Obama have constitutional authority to commit military forces to the implementation of Security Council Resolution 1973 without congressional approval? Back in 2007, Barack Obama said unequivocally that the answer to that question was “no” unless there was an imminent threat to the country. But in April 2011, the Obama Justice Department answers the question in the affirmative. I take a deeper look at Justice’s dodgy Libya opinion in this feature for Foreign Policy.

http://www.harpers.org/archive/2011/04/hbc-90008052


The Obama administration's legal rationale for bombing Libya suggests that while George W. Bush may be gone, the imperial presidency isn't.
In 2007, the Boston Globe's Charlie Savage asked then-U.S. Sen. Barack Obama whether the president could authorize the bombing of Iran without first seeking congressional authorization in circumstances in which there was no imminent threat to the United States. Obama's answer was clear and succinct: "The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." So it was something of a surprise when, on March 19, Obama's administration inaugurated its first uninherited foreign military operation by launching a barrage of Tomahawk missiles against Libya -- whose ruler, Col. Muammar al-Qaddafi, had made plenty of credible threats against his own people, but not against the United States -- without seeking congressional authority to do so. Did Obama rethink the question of war-making without congressional authority?

In a word, yes. Apparently Obama's lawyers told him he could do it, and he liked their advice: "Prior congressional approval was not constitutionally required to use military force in the limited operations under consideration." We know this from the opinion drafted by U.S. Justice Department lawyers on April 1, which was publicly released on April 7, on the legality of military operations in Libya following the U.N. Security Council's go-ahead. The document presents few surprises and looks remarkably like a pair of memoranda -- cited in the new opinion -- that former Assistant Attorney General Walter Dellinger, then head of President Bill Clinton's Office of Legal Counsel (OLC), wrote to authorize the use of military force in Haiti and Bosnia. As such it is typical of the Obama Justice Department: It avoids referring back to the opinions written during the executive-power-expanding heyday of President George W. Bush's first term, while arriving at markedly similar conclusions.



The opinion argues that "the President's legal authority to direct military force in Libya turns on two questions: first, whether United States operations in Libya would serve sufficiently important national interests to permit the President's action as Commander in Chief and Chief Executive and pursuant to his authority to conduct U.S. foreign relations; and second, whether the military operations that the President anticipated ordering would be sufficiently extensive in 'nature, scope, and duration' to constitute a 'war' requiring prior specific congressional approval under the Declaration of War Clause."

in full: http://www.foreignpolicy.com/articles/2011/04/11/how_not_to_declare_a_war?page=full