Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department's Office of Legal Counsel, had told the White House that they believed that the United States military's activities in the NATO-led air war amounted to "hostilities." Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.Glenn Greenwald points out that when lawyers in the Bush administration faced a similar conflict in 2007 over the NSA's warrantless wiretapping program, they threatened to resign en masse:
But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team -- including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh -- who argued that the United States military's activities fell short of "hostilities." Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.
Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney's top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush -- wanting to avoid that kind of scandal in an election year -- agreed to "re-fashion" the program into something those DOJ lawyers could approve (the "re-fashioned" program was the still-illegal NSA program revealed in 2005 by The New York Times; to date, we still do not know what Bush was doing before that that was so illegal as to prompt resignation threats from these right-wing lawyers).Last week, the White House issued a report to Congress detailing its justification for not seeking lawmakers' approval for military operations in Libya. In it, the Obama administration said the conflict does not rise to the level of a war because the U.S. is only playing a support role in the NATO-led operation -- that is, no U.S. troops on the ground and no potential for casualties -- and only plans to be involved for a short time.
That George Bush would knowingly order an eavesdropping program to continue which his own top lawyers were telling him was illegal was, of course, a major controversy, at least in many progressive circles. Now we have Barack Obama not merely eavesdropping in a way that his own top lawyers are telling him is illegal, but waging war in that manner (though, notably, there is no indication that these Obama lawyers have the situational integrity those Bush lawyers had [and which Archibald Cox, Eliot Richardson and William Ruckelshaus had before them] by threatening to resign if the lawlessness continues).
The report has not lessened lawmakers' displeasure at the Obama administration. House Majority Leader John Boehner announced late Friday that he plans to hold votes this week aimed at challenging Obama's authority to carry out U.S. military operations in Libya without congressional consent.
"From the outset of this operation, Members of the House have demonstrated respect for the authority granted to the Commander-in-Chief," Boehner said in a statement. "Unfortunately, the President has not exhibited a similar appreciation for Congress' important job of providing oversight and accountability. Even worse, he has failed to communicate to the American people why continuing this mission is critical to our national security."