President Obama’s absurd contention that the campaign in Libya does not constitute hostilities was adopted over the objections of the Office of Legal Counsel, and the Pentagon general counsel for good measure. This is almost never done:
Presidents have the legal 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. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
For years we suffered through incessant prattle that President Bush had committed us to “illegal wars” in Afghanistan and Iraq, even though both campaigns were authorized by Congress. Now, under the Obama administration, we have a military action that actually does violate federal law. I won’t go so far as to call it an “illegal war”, since the War Powers Act is quite possibly unconstitutional, but for the first time a serious case could be made.
POSTSCRIPT: The administration contends that the Libyan campaign does not constitute “hostilities” because Qadaffi’s forces are unable to fire back. A similar argument would apply to nearly any American air campaign. But in 2007, Joe Biden pledged to impeach President Bush if he attacked Iran’s nuclear program without Congressional approval. I don’t think that circle can be squared.
UPDATE: How rare is “extraordinarily rare”? John Elwood can’t think of a case more recent than the Roosevelt administration, except this is the second time already during the Obama administration.
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