Congress, Constitutional Law

Obama Throws OLC Under the Bus

-Submitted by David Drumm (Nal), Guest Blogger

In a remarkably rare event, President Obama has chosen to reject the legal opinion of the Office of Legal Counsel (OLC) on the subject of his responsibilities with respect to the War Powers Resolution (WPR).

In the opinion of the OLC, President Obama would have to terminate or scale back operations against Libya or seek Congressional approval. Obama accepted the analysis of the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh, who argued that the United States needed no permission from Congress to continue operations.

The core function of the OLC is to provide clear, accurate, thoroughly researched, and soundly reasoned legal advice to the Executive Branch. The OLC mission is to “give candid, independent, and principled advice — even when that advice is inconsistent with the aims of policymakers.”

The President is under no legal or Constitutional obligation to adopt the analysis of the OLC. However, the OLC’s procedures are designed to avoid the cherry-picking of legal advice that has occurred here. President Obama simply side-stepped the OLC.

President George W. Bush had a different modus operandi when it came to dealing with the OLC. When Bush sought legal justification for his torture program, he found a small group of lawyers at the OLC, headed by John Yoo, who gave Bush the advice he wanted. This short-circuited the usual process by which the OLC canvasses the Executive Branch for various opinions and forms an independent analysis.

President Obama has undermined the OLC as a honest broker of legal opinions. The Department of Justice lost its cachet of independence and non-partisanship when it was treated as just another political tool during the Bush administration. The Obama administration has rendered the OLC irrelevant.

The OLC has not had a leader since 2003, when Jack Goldsmith resigned. Dawn Johnsen, the first Obama nomination, withdrew after Republicans refused to allow a confirmation vote. The latest nomination to be the Assistant Attorney General for the Office of Legal Counsel is D.C. lawyer, Virginia A. Seitz. The person selected to fill that position is going to require more than the ability to generate premier legal scholarship, it’s going to require a strong and assertive personality.

Update: Glenn Greenwald recalls a similar episode:

Just imagine if George Bush had waged a war that his own Attorney General, OLC Chief, and DoD General Counsel all insisted was illegal (and did so by pointing to the fact that his White House counsel Alberto Gonzales and a legal adviser at State agreed with him).  One need not imagine this, though, because there is very telling actual parallel to this lawless episode:

…

Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney’s top lawyer, David Addington, agreed the NSA program was legal).  In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, …

H/T: Balkinization, Charlie Savage.

72 thoughts on “Obama Throws OLC Under the Bus”

  1. FFLEO, I agree that BVM had overstayed his welcome with his first hijacking post. As we get closer to the 2012 elections, I fear we will have trolls coming out of the woodwork. More conspiracy theorists, racists, homophobes, theocrats, and the just plain batshit crazies. Look at BVM, who falls under multiple categories all at once.

  2. HenMan, you really should warn us first. That made me snort orange juice out my nose.

  3. Lottakatz,

    That is a very good point. Many Congress members benefit in exactly the way you describe. Unfortunately there is more money in war business than even the oil business.

  4. I went to the Buena Vista Mall to do some shopping yesterday, but every store sells the same thing- organic fertilizer made from pure bullshit.

  5. Jill, Rafflaw, Puzzling, you all raise good points and observations but I would like to add that I don’t think Congress is being beaten down or so demoralized that it fails to take back its war making powers. I think that Congress very swiftly recognized that having the President go to war was politically preferable to having voters blame them for war. Even popular wars grow unpopular very quickly and no politician wants to answer to his/her constituents for wars that drag on endlessly. This lack of accountability by Congress in fact encourages long, fruitless wars.

    I read that Kucinich’s first bill never got to the floor because it would have succeeded. Congress, or at least the senior leadership therein, doesn’t want to start wars and they don’t want to end them and let all that pork go to waste. Congress is absolutely knowingly complicit in this end-run around the Constitution.
    ——-

    rafflaw: “I now know why Obama didn’t push harder for Dawn Johnsen to head up OLC. She would not have accepted Obama’s end run and he knew it.”

    Good observation.

  9. Swartmore Mom wrote, in part:

    “I think Romney could beat Obama…”

    If I vote, he is the man who will likely get my support.

  11. Things like this don’t help either:

    TRIPOLI, Libya — Libya’s government said NATO warplanes struck a residential neighborhood in the capital Sunday and killed nine civilians, including two children. Hours later, NATO confirmed one of its airstrikes went astray.

    The incident gave supporters of Moammar Gadhafi’s regime a new rallying point against the international intervention in Libya’s civil war. The foreign minister called for a “global jihad” on the West in response.

    Early Sunday morning, journalists based in the Libyan capital were rushed by government officials to the damaged building, which appeared to have been partly under construction. Reporters were escorted back to the site during the day, where children’s toys, teacups and dust-covered mattresses could be seen amid the rubble

    http://www.huffingtonpost.com/2011/06/19/libya-nato-bombing-civilian-casualties_n_879903.html

  12. puzzling,

    I think you raise a good question. I agree with both your and rafflaw’s speculation. On Libya specifically it does look as though the US govt. is down for a full scale invasion. We see hints of this from the UK’s recent decision to kinetically act in Libya at least through the end of Sept. One of their military’s people publicly said the UK didn’t have the resources to do the job and he was forced to apologize by #10 DS.

    It does seem like Obama and the most wealthy people world wide have decided they don’t just want a lot of power and money, they want it all. These people must be really mixed up inside to cause so much pain and suffering. I can’t imagine what it feels like to want others to starve, be kicked from their homes, to be killed, to be tortured etc. for one’s own pleasure. I am an atheist but I do not discount something like the human spirit. Their spirit is utterly broken. Their connection to the earth and to all life is dead. There can be no amount of money or power that would ever make up for being dead inside and causing such horrible pain in the world.

    If I look at what is happening, not just in the US, I see a small elite who looks upon their fellow travelers as nothing more than garbage. I do see Obama increasingly open in his use of force against protesters, whistleblowers, all people of conscience who speak out for justice. The police are up armored in ways difficult to imagine. The level of surveillance against our own population is staggering. This govt. is ready to squelch resistance. They obviously see their own population as “the enemy”. So, I agree with your idea that they do plan more wars and they do plan to take on their “enemies” (meaning we the people) domestically. That’s what they are doing now. “The best predictor of future behavior is past behavior.”

  13. puzzling,
    I think it is the taste of power that they get when they get in the office that wants them to protect the power for themselves and their successors. No evidence, just my guess.

  14. rafflaw,

    I agree with you, but isn’t there an even more fundamental reason why presidents from both parties would have sought more and more authority for the office? Bush, Cheney and Obama have actively positioned the Executive with the authority to supersede the Constitution. Why?

  15. puzzling,
    the Executive branch is attempting to continue its march towards control over the Congress with this latest sidestep of Congressional authority. Of course, Congress has to grow a pair and actually cut off funding to Libya. I would like to see them cut off funding to the wars in Iraq and Afghanistan, but I will be satisfied with Libya as a starting point.
    I now know why Obama didn’t push harder for Dawn Johnsen to head up OLC. She would not have accepted Obama’s end run and he knew it.

  16. Jill,

    I agree with GG’s assertion that these Presidents “wanted to establish the “principle” that the President is omnipotent in these areas and needs nobody’s permission (neither from Congress nor the courts) to do what the President wants.”

    My question is, do we know why?

    For what possible reason could we need to go to war on one man’s authority? Is the principle these Presidents are establishing even broader than war-making?

    Is this to take over the authority to spend from Congress? Is this to position the executive to more aggressively expand the empire and claim new US territories? Is this to prepare to force the United States into a broader world government? Is the precedent for this level of authority needed for some future domestic purpose?

  17. @Joeey

    That is a good start ! yes, most all of them. War Crimes and Treason.

    And don’t forget the Mainstream media…

    Washington DC = Nazi Berlin

  18. Joeey,

    Here’s what you prefer: “NATO Bombing of Tripoli Kills at Least 9 Civilians
    The incident occurred a day after the government accused NATO of specifically targeting civilians.

    TRIPOLI, Libya — NATO said Sunday it was investigating Libyan claims that nine civilians, two of them of toddlers, were killed in an alliance air raid and would be “very sorry” if that were the case.

    “NATO is looking into this matter,” said spokesman Wing Commander Mike Bracken. “NATO was operating in Tripoli last night, conducting air strikes against a legitimate military target.” (story at common dreams from APF) It’s easy to prefer something when you aren’t the one being killed, nor are your children being harmed.

    Notice that this is a war and that people are getting killed. Obama doesn’t care how Congress looks to others. Glen Greenwald is correct when he writes: “There’s another significant and telling parallel between Obama’s illegal war and the Bush eavesdropping scandal. One of the questions frequently asked about the NSA scandal was why Bush and Cheney decided to eavesdrop in violation of the law rather than having Congress approve their program; in the wake of 9/11, both parties in Congress were as subservient as could be, and would have offered zero resistance to requests by the administration for increased eavesdropping powers (the same question was asked of Bush’s refusal to seek Congressional approval for the detention and military commissions regime at Guantanamo). The answer to that question ultimately became clear: they did not want to seek Congressional approval, even though they easily could have obtained it, because they wanted to establish the “principle” that the President is omnipotent in these areas and needs nobody’s permission (neither from Congress nor the courts) to do what the President wants.

  19. BVM- If Obama should be arrested for breaking the law then so would the previous administration as well as the entire Congressional delegation for the 107 through 112 Congresses.

  20. Libya is not a big deal to me. Neither is the OLC or President Obama waging an additional war. I think most American’s have resigned themselves to the fact that the law is an instrument used solely to protect the wealthy and powerful- not tot end profitable wars.

    This is small potatoes. It is the, combined, 18 years of war in Iraq and Afghanistan which is concerning to me. I truly believe that if their were a democratic vote in this country over those wars (and Libya as well) a vast majority would vote for us to leave.

    If anyone seriously believes that Congress wouldn’t overwhelmingly support ANY military action ANYWHERE they are deluding themselves. Congress would vote Yes on war with Libya if it came up. The President doesn’t bring it up because he doesn’t want the public to see how craven and corrupt Congress is (when they vote in favor of another war).

    So a handful of Congress members oppose Libya? So what. Would they if they were asked to vote yea or nay? I bet some would vote yes. Any legal challenge will take years- we will have already started several additional wars in that time.

    While I would prefer no wars at all I will take a Libya style conflict over an Afghanistan type conflict. This is just hype so that a few Congress people in tough races can tell their constituents that they made an empty- I mean profound- gesture for peace.

    Added reasons: Each bomb used is a bomb which needs to be replaced. Each soldier overseas is another young man who isn’t looking for a job. Do you think these Congress people don’t understand that?

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