Report: Obama overruled lawyers on Libya air war

June 18, 2011

Rebel fighters fire their mortars towards pro-Moammar Gadhafi forces… (AP Photo )

President Barack Obama decided he could continue the air war in Libya without congressional approval despite rulings to the contrary from Justice Department and Pentagon lawyers, according to published reports.

The president relied instead on the opinions of other senior administration lawyers that continuing U.S. participation in the air operations against the regime of Libyan leader Moammar Gadhafi did not constitute “hostilities,’’ triggering the need for Congressional permission under the War Powers Resolution, the New York Times reported in its online edition Friday night.

Among those reported to support the president’s action were White House counsel Robert Bauer and State Department legal adviser Harold H. Koh, the paper said. Those opposed included Pentagon General Counsel Jeh C. Johnson and acting head of the Justice Department’s Office of Legal Counsel Caroline D. Krass.

One issue was reported to be whether firing missiles from drones amounted to hostilities.

Presidents can ignore the advice of the Office of Legal Counsel, but rarely do so, the newspaper reported.

The 1973 law prohibits the military from being involved in actions for more than 60 days without congressional authorization, plus a 30-day extension. The 60-day deadline passed last month with the White House saying it is in compliance with the law. The 90-day mark is Sunday.

White House spokesman Jay Carney addressed the internal debate over the resolution at his briefing Thursday.

He said “there was a robust process through which the president received the advice he relied on in determining the application’’ of the War Powers Resolution.

He noted the resolution has been subject to intense debate since it was first enacted in 1973.

“We are not going to get into the internal process by which the president receives legal advice,’’ Carney said. “It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict. Those disagreements are ordinary and healthy.’’

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