Obama's Libya policy: Wrong, but not as wrong as Bush's torture policy.

The law, lawyers, and the court.
July 5 2011 6:17 PM

Different Kinds of Wrong

The difference between Obama's Libya policy and Bush's torture policy.

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What's especially concerning about the Libya legal determination is the process by which it was reportedly reached, deviating from the traditional process by which OLC formulates legal advice for the executive branch. The administration has not contradicted reports that the more politically oriented White House counsel's office played the role historically reserved for the attorney general and OLC. Also troubling are the prescriptions for change offered by Posner and Ackerman.

Posner, again characteristically provocative, faults Obama's OLC for not being willing to abandon its judgment that the United States is engaged in "hostilities" in order to back up the president. He speculates that OLC may have taken too seriously the rhetoric of independence, to the detriment of what Posner says is OLC's true role: "Keeper of the Presidential Fig Leaf." Thus, to Posner the best legal interpretation of "hostilities" or "torture" is irrelevant. If OLC wouldn't provide the desired fig leaf of support, the president was free to look to any government lawyer who would.

Simply to describe Posner's position is to discredit it. I have previously elaborated on why the Constitution, the rule of law, and the president himself all are best served by an OLC that strives for accurate, rigorous, and principled legal interpretations. Longstanding tradition and bipartisan consensus support that as OLC's true and great aspiration, if not always its reality.

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Ackerman shares and has helpfully expounded on this ideal. But he believes OLC, led as it is by political appointees, is institutionally ill-suited to achieve it—especially when the president does not want to be so constrained. Although reports are that OLC did seek to constrain the president and enforce the 60-day clock in Libya, Ackerman uses the occasion to promote his earlier proposal to strip OLC of its central functions and transfer them to a new, "independent" legal tribunal within the executive branch.

Ackerman raises some worthwhile alarms, including those about the recent expansion of the size and influence of the White House counsel's office. But his proposal to supplant OLC is ill-advised and unworkable. The complex reasons are well-addressed by former OLC and White House lawyer Trevor Morrison, and the Libya events help make the point. In this type of fast-moving situation, the president ideally would receive accurate advice from a trusted source, from the earliest days and throughout as facts changed on the ground.

Contrary to Posner's insinuations, no one is suggesting the president lacks the authority to reject the views of the Department of Justice. But presidents only rarely ever have, and for good reason: When they do, they should follow traditional processes that ensure they are acting on the best legal interpretations and inspire public confidence that they are not seeking simply to justify desired policy outcomes. Ideally, the president first should meet personally to discuss any disagreement with the head of OLC and the attorney general, and not have their legal views filtered through the White House counsel.

Whatever its flaws, the Obama administration's interpretation of the War Powers Resolution is plain for all to see. It's high time for Congress to exercise its own constitutional authority, as encouraged by the War Powers Resolution, and authorize the Libya operation with whatever conditions it sees fit—conditions that this administration, in contrast to the last, recognizes its constitutional obligation to honor.

Congress should also codify its understanding of the terms of the War Powers Resolution. A pending Senate resolution, which as amended by Sen. Richard Lugar specifies that hostilities have been ongoing, would accomplish both goals. Both houses of Congress should approve that resolution with dispatch, and the Obama administration, and successive administrations, should welcome it. The separation of powers depends on a responsible, constructive dialogue between the president and Congress.

Dawn Johnsen is a professor of law at Indiana University's Maurer School of Law. She led the Office of Legal Counsel during the Clinton administration and was President Obama's first nominee to head OLC, but withdrew in April 2010 after 15 months without a Senate vote.