War Powers, Impeachment & Obama

Cross posted from The Stars Hollow Gazette

Has Barack Obama over-stepped his constitutional authority by continuing to participate in the Libya NATO action without congressional consent? Like George W. Bush ignoring the law banning water boarding as torture, Obama has decided to ignore the War Powers Resolution and the advice of two top lawyers from the Pentagon and his own DOJ. In the New York Times, Charlie Savage writes a scathing analysis of the president’s actions:

   President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

   Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

   But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team – including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh – who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

The question is could this open an investigation by the House to consider impeachment. Several other lawyers have their own views, none of them very pretty.

This stinging comparison from Jack Balkin at Balkinization of Obama’s decision to not consult with his own Office of Legal Council (OLC): George W. Obama and the OLC

It is instructive to compare President Obama’s actions with those of his predecessor, George W. Bush, who sought legal justification for his decision to engage in waterboarding and other “enhanced interrogation techniques,” which constituted torture. Bush wanted above all to be able to deny that he was violating the anti-torture statute and other laws and treaties. So he found a small group of lawyers in the OLC, headed by John Yoo, and asked for their opinions. This short-circuited the usual process through which the OLC collected views from various agencies and then used them to develop legal opinions for the executive branch. That is, Bush (assisted by his Vice-President, Dick Cheney) arranged matters so that decisions about waterboarding and enhanced interrogation techniques would be in the hands of lawyers he knew would tell him yes; the normal process of collating opinions was short-circuited and other lawyers were effectively frozen out.

Obama’s practice is different, but it has disturbing similarities. Normally, Obama would have asked the OLC for its opinion, and as noted above, the OLC would have polled legal expertise in various agencies, consulted its precedents, had long discussions, and then come up with a scholarly opinion that is normally binding on the executive branch. Instead, Obama routed around the OLC, asking for opinions from various lawyers, including the White House Counsel and the Attorney-Advisor for the State Department. It is difficult to escape the conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC.

Obama’s strategy, like Bush’s, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

At Lawfare, Jack Goldsmith has a similar view but adds:

This episode makes me wonder how all of this is being taken by the U.S. military.  It must be strange to many involved in Operation Odyssey Dawn to be told that not only are they not involved in “war,” they are not even involved in “hostilities.”  A midshipman at the Naval Academy wrote to cto say, in light of the original unilateral resort to force in Libya, that he wondered whether the soldiers fighting in Libya “are breaking their oath to obey only legal orders.”  I think this is a large overreaction to the initial use of force.  And despite my views of the WPR here, I do not think that disobedience would be a proper reaction to the President’s decision under the WPR.  The President gets to make the call and his decision is not so far out of bounds to warrant disobedience.  But it cannot be pleasant for the men and women involved in this “kinetic military action” to know that the Defense Department General Counsel and the head of OLC think the intervention in Libya as currently executed is unlawful.

Glenn Greenwald believes that Obama’s end run around the WPR may be even worse than the Bush/Cheney regime:

   All that aside, what is undeniable is that Obama could have easily obtained Congressional approval for this war – just as Bush could have for his warrantless eavesdropping program – but consciously chose not to, even to the point of acting contrary to his own lawyers’ conclusions about what is illegal.

   Other than the same hubris – and a desire to establish his power to act without constraints – it’s very hard to see what motivated this behavior. Whatever the motives are, it’s clear that he’s waging an illegal war, as his own Attorney General, OLC Chief and DoD General Counsel have told him.

In summing all this up, bmaz at FDL states:

Without saying Obama should be impeached, failure to at least have the discussion made in those terms is dereliction of constitutional duty by people, pundits and Congress. This critical issue is not yet getting that kind of play, but it should as it is absolutely why the founders placed the provision in the Constitution to start with.

If our society and political discourse cannot seriously discuss impeachment for the type of executive perfidy demonstrated by Barack Obama in relation to Libya and the War Powers Resolution, and could not discuss it during the Bush/Cheney crimes, then the impeachment provision of the Constitution has no meaning and should be stricken.

Seriously, those are the stakes. A discussion, even an investigation, does not mean there has to be an impeachment conviction, or even that articles of impeachment should even be filed. But the discussion must be had if there is to continue to be integrity to the most fundamental terms and conditions of the United States Constitution.