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Three More Thoughts on the Administration’s War Powers Resolution Argument

Jack Goldsmith
Thursday, June 16, 2011, 12:25 PM
Three somewhat broader thoughts in addition to this morning’s analysis: 1.

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Three somewhat broader thoughts in addition to this morning’s analysis: 1.      The Administration’s WPR argument carves out from the scope of the WPR attacks from a safe distance.  This is a potentially large carve-out, for U.S.-style warfare is becoming dominated by attacks from a safe distance – drones, precision-guided missiles, cyber-operations, and the like.  The Administration might try to narrow the carve-out by arguing that attacks from a distance that are larger-scale than the ones in Libya – shock and awe type attacks, for example? – would constitute “hostilities.”  If that is the argument – I see it nowhere clearly stated, but it might be the argument – then I do not understand why the Administration emphasizes that no U.S. troops are in danger from long-distance attacks and that Congress can easily force a troop withdrawal.  If intensity and scale are the key limits on safe-distance attacks, then arguments about danger and withdrawal are irrelevant, because those arguments would apply equally to large and small scale safe-distance attacks.   Moreover, even if intensity and scale are key, I do not know where or how the administration draws the line.  One relatively well-understood line is “armed attack” under international law.  That is a minimal line suggested by the 1980 OLC opinion.  But if that is the line, then the Libya action would count as “hostilities” because it is an armed attack. 2.     The Administration argues that its operation is legitimated and limited by the U.N. Security Council Resolution.  It does not really explain why it thinks this.  But in any event, the “no danger to troops” theory, combined with the heavy reliance on the Security Council Resolution, suggest that the Administration is creating a principle of unilateral presidential war power for U.N.-sponsored interventions from a distance.  In practice, this principle will likely favor humanitarian over national security interventions, since the U.N. is more likely to authorize a purely humanitarian intervention than one that has a more obvious U.S. national security interest.  So the ambition of the Obama legal theory – or at least its effect – is to carve out a place for presidential war unilateralism for U.N.-sponsored humanitarian wars but not (for lack of a better phrase) national security wars.  That ambition (or effect), unsurprisingly, dovetails with the commitments and preferences of some top Obama advisors. 3.     The Charlie Savage story notes:  “It was not clear whether the Justice Department had endorsed the White House’s interpretation of hostilities. Mr. Bauer declined to say whether it had signed off on the theory, saying he would not discuss interagency deliberations.”  This is odd.  The Office of Legal Counsel exercises the interpretive power of the Executive branch as delegated from the President through the Attorney General.  Recall that it wrote and published the opinion explaining the constitutional basis for the Libya intervention (an opinion that I think is increasingly at odds with the current posture of the war).  The interpretation of the WPR is normally OLC’s call, not the White House Counsel’s call or the State Department Legal Advisor’s call.  (Historically it is the State Department, not DOJ, that has informed Congress – typically, the foreign relations committees – about 5(b) questions; but this reporting also typically reflects the views of DOJ.)  The fact that the Justice Department was not in this meeting, and that Bauer would not comment on whether it signed off on the theory, suggests that OLC or DOJ has problems of some sort with the Administration’s legal theory.  So too does Speaker Boehner’s letter to the President, which asked, with apparent inside knowledge: “Assuming you conducted that analysis, was it with the consensus view of all stakeholders of the relevant Departments in the Executive branch? In addition, has there been an introduction of a new set of facts or circumstances which would have changed the legal analysis the Office of Legal Counsel released on April 1, 2011?”  It is very unusual for OLC’s legal advice to be disregarded or overruled, if that is what happened here.  But it is not unprecedented.  The President – who in this case happens to be a lawyer and former law professor – has the final say on Executive branch legal interpretations.  I’m sure we’ll be hearing more about internal Administration legal disputes over the WPR. Update: Josh Gerstein says that “Carney acknowledges 'robust debate' among Obama legal advisers about whether War Powers Act applies to Libya operation.”

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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