Obama administration lawyers divided over legality of US operations in Libya

[JURIST] US President Barack Obama overrode the legal interpretations of the Department of Defense (DOD) and the Department of Justice Office of Legal Counsel [official websites] in maintaining the administration's position that US forces operating in Libya did not violate the 1973 War Powers Resolution [50 USC § 1541 et seq.], the New York Times reported [NYT report] Monday. Pentagon general counsel Jeh Johnson and Caroline Krass [official profiles] acting head of the Office of Legal Counsel told the President that they believed that US activities in Libya constituted "hostilities" under the War Powers Resolution. Under such an interpretation, US forces would have to have been pulled out by May 20 without further authorization from Congress. The president however, relied on the interpretations of White House counsel Robert Bauer [professional profile] and State Department legal advisor Harold Koh [official profile] in determining that US activities did not amount to "hostilities" because they are only playing a supporting role in the NATO-led mission pursuant to and limited by the UN Security Council Resolution authorizing military action in Libya to protect civilians. Usually, interpretations of the Office of Legal Counsel are the last word, but the president does have the authority to override them. After threats to defund the operations from Congress, a group of 37 conservative leaders, including former deputy assistant secretary of state Liz Cheney, former deputy secretary of defense Paul Wolfowitz, and former Bush administration advisor Karl Rove, sent an open letter [WSJ report, letter text] to House Republicans Monday urging them not to cut funding:

Such a decision would be an abdication of our responsibilities as an ally and as the leader of the Western alliance. It would result in the perpetuation in power of a ruthless dictator who has ordered terrorist attacks on the United States in the past, has pursued nuclear weapons and other weapons of mass destruction, and who can be expected to return to these activities should he survive. To cut off funding for current efforts would, in short, be profoundly contrary to American interests. ... The United States should be leading in this effort, not trailing behind our allies. We should be doing more to help the Libyan opposition, which deserves our support. We should not be allowing ourselves to be held hostage to UN Security Council resolutions and irresolute allies.
Last week, Speaker of the House John Boehner (R-OH) [official website] threatened [WSJ report] that the House would defund operations in Libya arguing that it is outside the president's authority. Still, Obama's action found support [AP report] from outgoing Defense Secretary Robert Gates [official profile] who called US activities "a limited kinetic operation."

Last week, President Obama released a report defending the legality of US operations [JURIST report] in Libya in a report released in response to recent criticisms of American intervention in Libya, including: a resolution [bill materials] passed in the US House of Representatives [official website] calling for withdrawal without congressional approval; a letter [text] to Obama from Boehner warning that he was within five days of violating the War Powers Resolution; and Representatives Dennis Kucinich (D-OH) and Walter Jones (R-NC) [official websites] filing a lawsuit [JURIST report] seeking an injunction on the Libya action. Obama's report endorsed a pending resolution [bill materials] that would provide some congressional support for continued efforts in Libya, though not approval of declaring war. The report also detailed that the US has spent USD $716 million and will spend $1.1 billion by the end of September.

 

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