Charlie Savage reports in the New York Times that the White House decided earlier this year to overrule official Department of Justice advice on whether the War Powers Act applies to Libya:
President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.
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.
So how often do presidents overrule the OLC? John Elwood:
As the article also notes, it is “extraordinarily rare” for that to happen. When Senator Whitehouse asked me after a hearing in 2008 for an example, the only one that came to mind was from the Roosevelt Administration. (There must be others, but I’m still drawing a blank.) If press accounts are correct, together with the D.C. voting rights bill, we now have two recent examples.
Hmmm. I think we should make that three recent examples. George Bush's overrule of the OLC on the legality of the NSA eavesdropping program wasn't that long ago, after all. As I recall, we liberals got pretty hot under the collar over that. Just as we got pretty hot under the collar over the obvious politicization of the OLC when it approved the use of torture against detainees at Guantanamo.
The DC voting bill example doesn't bother me much. It was all done out in the open, there was plenty of opportunity to discuss its constitutionality, and everyone knew it would have gone to the Supreme Court if it had passed. The OLC's opinion just wasn't that decisive. But unilateral executive actions done against OLC advice are entirely different. There's no public debate, there's no need to round up votes, and the Supreme Court quite likely will never have a chance to get involved. And they're especially different when the president overrules the OLC based on a reading of the law that's as transparently absurd as Obama's claim that our operation in Libya isn't important enough to count as "hostilities."
Look: either we believe that the OLC should be both independent and authoritative or we don't. In the past, I think most liberals — including Barack Obama — believed both. It's disgraceful that apparently he no longer does.