...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.” The Acting head of the Office of Legal Counsel, Caroline Krass, and the General Counsel of the Department of Defense, Jeh Johnson, advised the President that military activities in Libya constituted “hostilities” under the War Powers Resolution and thus Section 5(b) of the WPR required him to terminate or scale back the mission after May 20. The President...sided with the White House Counsel, Robert Bauer, and the State Department Legal Advisor, Harold Koh, who argued that the actions in Libya fell short of “hostilities” and thus did not implicate Section 5(b)’s termination provisions.
...the President has the authority under Article II to make legal determinations for the Executive branch. The process by which he reached this decision, however, was very unusual...OLC is also the government’s institutional expert on interpretations of the WPR.
"The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do. In this case, however,...the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision."
...White House Counsel Bob Bauer is a smart man but neither he nor his office is expert in war powers...Legal Advisor Harold Koh, by contrast, spent his entire academic career studying and writing about presidential war powers, including the WPR. Based on this academic record, one would not have expected Koh to push an unusually narrow interpretation of the WPR...
This is not how things have worked out. One wonders why. One possibility is that Koh has a client, the Secretary of State, who is committed to the Libya intervention, and he is serving his client faithfully...But for a quarter century before heading up State-L, Koh was the leading and most vocal academic critic of presidential unilateralism in war...I am thus genuinely surprised, as many people are, by his current stance.
