In a nuanced article about President Obama’s decision to continue military action in Libya without congressional approval, former Obama Office of Legal Counsel nominee Dawn Johnsen criticizes the president’s reading of the law — and calls upon Congress to reverse this misinterpretation of the president’s war powers:
Contrary to the Obama administration’s legal interpretation, recent military operations in Libya—which include repeated piloted and drone air attacks—should be treated as “hostilities” under the War Powers Resolution. This is reportedly what the Justice Department’s Office of Legal Counsel advised. Yet the president rejected this view, instead siding with that of the State Department and White House counsel’s office. [...]
It’s high time for Congress to exercise its own constitutional authority, as encouraged by the War Powers Resolution, and authorize the Libya operation with whatever conditions it sees fit—conditions that this administration, in contrast to the last, recognizes its constitutional obligation to honor.
Congress should also codify its understanding of the terms of the War Powers Resolution. A pending Senate resolution, which as amended by Sen. Richard Lugar specifies that hostilities have been ongoing, would accomplish both goals.
As Johnsen points out, the administration deserves credit for rejecting the John Yoo position that presidents can simply ignore laws constraining their warmaking powers that they don’t feel like obeying — and the Obama Administration is unambiguously right about this. As far back as 1804, the Supreme Court established in Little v. Barreme that Congress may place limits on how the president exercises his authority as commander-in-chief. This is why Congress could have prevented President Bush from escalating the Iraq War, and it is also the reason why Congress can tell President Obama that he needs approval to continue combat in Libya.
In the end, Johnsen’s article highlights the utter unconscionability of the GOP’s decision to filibuster her nomination to head OLC. The OLC head’s most important and most difficult job is to tell the president of the United States when he is wrong about the law. Johnsen proved she is up to that task, and she deserved the opportunity to perform it from within the administration.