Obama went lawyer shopping for War Powers Act opinion
So what if the top legal advisors at the Pentagon and Department of Justice told the president he had to get congressional authorization for the war in Libya? Obama was sure he could find someone to split the necessary legal hairs to find him justification to make war without pesky democratic checks and balances like, you know, the law standing in his way.
To say that the legal justification Obama accepted from other attorneys is weak, a stretch, contradictory, and without merit is just getting started in a critique of the president's actions. He actually overrode the top legal minds in government when it comes to warmaking in order to give congress the back of his hand.
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.
Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office's interpretation of the law is legally binding on the executive branch.
For the record, Bush did something similar in overriding legal opinions at DoJ on FISA warrants. The legal justification for enhanced interrogation techniques was also shopped by the White House.
But in the Bush case, these actions were taken post 9/11 and dealt with the security of the US. No one argues that Libya is anything but a "humanitarian" adventure with zero impact on the safety and security of the country.
And only rank partisans argue that our actions in Libya fail to rise to the level of involvement where the War Powers Act should not be triggered.
The moral of this story is, if presidents look hard enough, they can probably find a legal justification for just about anything.
Hat Tip: Ed Lasky
Update by Thomas Lifson:
The Left is in a such a lathere over this that at the Huffington Post, they are using the N-word (Nixon). (hat tip: James G. Wiles)