Legal Acrobatics, Illegal War
By BRUCE ACKERMAN
IT has now been over three months since the first NATO bombs fell on
When Mr. Obama first announced American military involvement in
Last Sunday was the 90th day of bombing in
Since the 1930s, it has been the job of an elite office in the Justice Department — the Office of Legal Counsel — to serve as the authoritative voice on matters of legal interpretation. The approximately 25 lawyers in this office write legal opinions after hearing arguments from the White House as well as other executive branch departments.
But not this time. After Caroline D. Krass, acting head of the Office of Legal Counsel, told the president that he had to abide by the act’s requirements, the White House counsel decided to pre-empt the Justice Department’s traditional role. As the war powers deadline approached, Mr. Bauer held a series of White House meetings at which he contested the Office of Legal Counsel’s interpretation and invited leading lawyers from the State Department and the Pentagon to join him in preparing competing legal opinions for the president.
This pre-emptive move was not unprecedented. During George W. Bush’s administration, shortly after 9/11, the White House counsel, Alberto R. Gonzales, led an ad hoc war council that included State and Defense Department officials. It was in this hyper-politicized setting that John Yoo, representing the Office of Legal Counsel, prepared his notorious “torture memos” for President Bush’s approval.
The players are different this time around, but the dynamic is the same. Mr. Obama is creating a decisive and dangerous precedent for the next commander in chief, who is unlikely to have the Harvard Law Review on his résumé.
From a moral perspective, there is a significant difference between authorizing torture and continuing a bombing campaign that may save thousands of Libyans from slaughter by Col. Muammar el-Qaddafi. But from a legal viewpoint, Mr. Obama is setting an even worse precedent.
Although Mr. Yoo’s memos made a mockery of the applicable law, they at least had the approval of the Office of Legal Counsel. In contrast, Mr. Obama’s decision to disregard that office’s opinion and embrace the White House counsel’s view is undermining a key legal check on arbitrary presidential power.
This is a Beltway detail of major significance. Unlike the head of the Office of Legal Counsel, the White House counsel is not confirmed by the Senate — which means that the president can appoint whomever he likes. Some presidents have picked leading legal statesmen like Lloyd N. Cutler, who served both Jimmy Carter and Bill Clinton. But others have turned to personal friends to fill the office. In such cases, it is especially difficult for the White House counsel to say no to a top presidential priority on the grounds that the law prohibits it.
Mr. Bauer is not the only administration lawyer to conclude that the billion-dollar bombing campaign in
If the precedent Mr. Obama has created is allowed to stand, future presidents who do not like what the Justice Department is telling them could simply cite the example of Mr. Obama’s war in Libya and instruct the White House counsel to organize a supportive “coalition of the willing” made up of the administration’s top lawyers. Even if just one or two agreed, this would be enough to push ahead and claim that the law was on the president’s side.
Allowing the trivialization of the War Powers Act to stand will open the way for even more blatant acts of presidential war-making in the decades ahead. Congress must confront the increasingly politicized methods White House lawyers are using to circumvent established law and stop them from transforming it into an infinitely malleable instrument of presidential power.
If Congress does not act, the Constitution’s command that the president “take Care that the Laws be faithfully executed” will become nothing more than an unfulfilled hope on an old piece of parchment.
Bruce Ackerman, a professor of law and political science at Yale, is the author of “The Decline and Fall of the
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs