-Submitted by David Drumm (Nal), Guest Blogger
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.