President overruled 2 key lawyers on debate over Libya war policy

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President overruled 2 key lawyers on debate over Libya war policy

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.

By CHARLIE SAVAGE

The New York Times

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 , 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 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.

Typically, the office's interpretation of the law is legally binding on the

executive branch.

Administration spokesman 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 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, 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.