It’s not unusual for an administration to have internal deliberations about a course of action, especially when it comes to foreign policy and national security, but the divisions within this administration over U.S. policy in Libya appear to be pretty stark.
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.
As the NYT‘s Charlie Savage notes, a president has the authority to override the judgment of the Office of Legal Counsel, but such steps are “extraordinarily rare.”
Also note the story behind the story: the only reason we’re hearing about this now is the fact some administration officials decided to leak the information to Savage. In other words, enough people are angry about this that they’ve decided to take their frustrations public.
In the meantime, House Republican leaders have publicly suggested the chamber may vote, perhaps as early as next week, to defund U.S. military efforts in Libya, in part because of differences over the War Powers Act.
GOP leaders, as of yesterday, were facing pushback from their own allies, with Weekly Standard Editor Bill Kristol, former Bush aide Elliott Abrams, and Carnegie’s Robert Kagan — leading neocons, all — circulating a letter arguing that cutting off funding would be “an abdication of our responsibilities as an ally and as the leader of the Western alliance.
If memory serves, talk from congressional Democrats during the Bush/Cheney era about defunding military operations generated cries of “treason.” I can’t help but notice the rhetoric seems far milder this week, now that congressional Republicans are considering a similar step.
In the Senate, meanwhile, Majority Leader Harry Reid (D-Nev.) appears to have allied himself with President Obama on the dispute, telling PBS, “The War Powers Act has no application to what’s going on in Libya.”
It’s worth noting that many members of Reid’s caucus, most notably Majority Whip Dick Durbin (D-Ill.), have reached the opposite conclusion.