President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided he had the legal authority to continue U.S. military participation in the air war in Libya without congressional authorization, sources said.
WASHINGTON — President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided he had the legal authority to continue U.S. military participation in the air war in Libya without congressional authorization, according to officials familiar with internal administration deliberations.
Jeh Johnson, Pentagon general counsel, and Caroline Krass, acting head of the Justice Department’s Office of Legal Counsel, had told the administration they believed that the U.S. military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Obama to terminate or scale back the mission after May 20.
But Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including White House counsel Robert Bauer and State Department legal adviser Harold Koh — who said the military’s activities fell short of “hostilities.” Under that view, Obama needed no permission from Congress to continue the mission unchanged.
Presidents have the 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.
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Typically, the office’s interpretation of the law is legally binding on the executive branch.
Administration spokesman Eric Schultz said there had been “a full airing of views within the administration and a robust process” that led Obama to his view that the Libya campaign was not covered by a provision of the War Powers Resolution that requires presidents to halt unauthorized hostilities after 60 days.
“It should come as no surprise that there would be some disagreements … regarding the application of a statute that is nearly 40 years old,” Schultz said.
The disclosure that key figures on the administration’s legal team disagreed with Obama’s view could fuel restiveness in Congress, where lawmakers from both parties this week strongly criticized the administration’s contention that the president could continue the Libya campaign without their authorization because the campaign was not “hostilities.”
The administration unveiled its interpretation of the War Powers Resolution in a package about Libya it sent to Congress late Wednesday.
On Thursday, House Speaker John Boehner, R-Ohio, demanded to know whether the Office of Legal Counsel had agreed.
“The administration gave its opinion on the War Powers Resolution, but it didn’t answer the questions in my letter as to whether the Office of Legal Counsel agrees with them,” he said.
A sticking point for some skeptics was whether any mission that included firing missiles from drone aircraft could be portrayed as not amounting to hostilities.
As the May 20 deadline approached, Johnson advocated stopping the drone strikes as a way to bolster the view that the remaining activities in support of NATO allies were not subject to the deadline, officials said.
But Obama decided there was no legal requirement to change anything about the military mission.
The theory Obama embraced holds that U.S. forces have not been in “hostilities” as envisioned by the War Powers Resolution at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to a supporting role providing refueling assistance and surveillance, although remotely piloted U.S. drones periodically fire missiles.
The administration has also emphasized that there are no troops on the ground, that Libyan forces are unable to fire at them meaningfully and that the military mission is constrained from escalating by a U.N. Security Council Resolution.