The growing controversy over President Obama’s illegal waging of war in Libyagot much bigger last night with Charlie Savage’s New York Times scoop. He reveals that top administration lawyers — Attorney General Eric Holder, OLC Chief Caroline Krass, and DoD General Counsel Jeh Johnson — all told Obama that his latest, widely pannedexcuse for waging war without Congressional approval (that it does not rise to the level of “hostilities” under the War Powers Resolution (WPR)) was invalid and that such authorization was legally required after 60 days: itself a generous intepretation of the President’s war powers. But Obama rejected those views and (with the support of administration lawyers in lesser positions: his White House counsel and long-time political operative Robert Bauer and State Department “legal adviser” Harold Koh) publicly claimed that the WPR does not apply to Libya.
As Savage notes, it is, in particular, “extraordinarily rare” for a President “to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice.” Just imagine if George Bush had waged a war that his own Attorney General, OLC Chief, and DoD General Counsel all insisted was illegal (and did so by pointing to the fact that his White House counsel Alberto Gonzales and a legal adviser at State agreed with him). One need not imagine this, though, because there is very telling actual parallel to this lawless episode: