I’ve seen some folks on the left responding to the news that President Barack Obama ignored advice that he needed congressional authorization from Congress to continue operations in Libya from Attorney General Eric Holder, Pentagon General Counsel Jeh Johnson, from the Office of Legal Counsel offered by Caroline Krass, characterizing the issue as just another executive branch disagreement. John Cole wrote, “In other words, he got conflicting legal advice, and went with [State Department Legal Adviser Harold] Koh and [White House Counsel Bob] Bauer over Johnson and Krass.”
I think this minimizes the magnitude of the president’s decision.
A little background: The Office of Legal Counsel provides the executive branch with legal advice that is meant to ensure that the executive branch stays within the law. During the Bush administration, this role was twisted as the OLC became politicized, going from the first line of defense against executive overreach to in some cases merely becoming a rubber stamp for dangerous expansions of executive power. As Jane Mayer wrote in The Dark Side, having John Yoo at OLC was like “having a personal friend who could write medical prescriptions.”
Apparently Obama didn’t have a hack at OLC who would just write what he wanted to hear, (although as Marcy Wheeler points out, the OLC’s memo authorizing operations appears to have been written after the fact). Nevertheless, as Jack Balkin writes, Obama appears to have tried to circumvented the regular process through which OLC offers advice in order to get the opinion he wanted.
Here is D-Day, responding:
Just to respond with my hive mind to John Cole, if you think that the Supreme Court of the executive branch and the President’s personal lawyer are equally viable opinions you can pick and choose from in these matters, you’re a bit wrong. Also, the problem here is that the President circumvented the OLC process, and reduced a legally binding check on the power of the executive branch to just one opinion among many. If I could go to court and select the advice of my lawyer on a legal issue rather than the judge, I’d take it! Adam Serwer backs me up here.
I could go on and on with the emails and the pieces from other people I trust, but I’ll just save some time, admit I was wrong, and say sorry to D-Day for being a dick. I often write in haste and anger, and a lot of times blow it and lash out at people. This was one of them. It’s particularly odd mistake for me in one sense, because I think Koh’s advice doesn’t even pass the laugh test. It’s a simply absurd stance- I bet these folks think the US and allies are engaged in “hostilities.”
If I could add a limited defense of myself, I’ll just note that I’m really frustrated right now. Everywhere I look, I see the President under siege, whether it be clowns on center stage at NN (although it is nice to know that it really wasn’t like that at all), that absurd post by Scarecrow in which we are “defied” to explain one difference between Obama and Romney, the full-fledge assault by Republicans, the over fluffing of the GOP by the media, and I could go on and on. So when I saw Choi/Aravosis shitshow at NN, followed by D-Day’s piece and the ensuing predictable comments (“Quite an accomplishment – to make us pine for the days when John Ashcroft was AG.,” “it seems more and more that obama really is related to cheney doesn’t it,” etc. ad nauseum, and yes, I am aware that someone who views the world through a different lens could make the same observations about the comments here.), I snapped. I’m human.
I spend every day here alternately being called an Obama lemming or bashed for insufficient fealty to the Obama nation, and sometimes I just get pissed off and people get caught in the crossfire. So, I’m sorry for that. You do this for ten years, and you make lots of mistakes. But one mistake I won’t make is that I realize that not all bad guys are Hitler, and not every bad Obama decision makes him worse than Bush. Or even comparable.