So for three months now, we’ve been at war in a country that the president’s own secretary of defense admits is “not a vital interest for the United States.” Turns out, it’s also a war that the president’s own attorney general believes to be illegal.
That’s what I get from Charlie Savage’s recent reporting on how the White House “forum‐shopped” its way to its current position on the War Powers Resolution, to wit, you’re not engaged in “hostilities” if you’re hitting someone but they can’t hit you back.
As the WPR’s 60‐day deadline approached, the Pentagon’s general counsel and, more importantly, the head of the president’s Office of Legal Counsel, Caroline D. Krass, advised Obama that bombing Tripoli—even if done remotely, with little risk of immediate retaliation—counted as engaging in “hostilities” under the WPR, which meant that the president would have to terminate U.S. involvement or radically scale it back after the 60‐day limit. As Savage reports, “Attorney General Eric H. Holder Jr. supported Ms. Krass’s view, officials said”—in other words, that if the president continued bombing Libya, he’d be violating the WPR.
Ordinarily OLC’s opinion would have the greatest weight here, but President Obama went with the advice given by White House Counsel Robert Bauer and State Department Legal adviser Harold Koh—who told him what he wanted to hear.
My Washington Examiner column today focuses on Harold Koh as an object lesson in the corrupting potential of power:
Harvard’s Jack Goldsmith notes that “for a quarter century before heading up State‐Legal, Koh was the leading and most vocal academic critic of presidential unilateralism in war.” On the strength of that reputation, Koh rose to the deanship of Yale Law School in 2004.
And Koh seemed to take the War Powers Resolution pretty seriously. In 1994, for example, he wrote to the Clinton Justice Department to protest the planned deployment to Haiti, which was carried out without a single shot being fired:
“Nothing in the War Powers Resolution authorizes the President to commit armed forces overseas into actual or imminent hostilities in a situation where he could have gotten advance authorization.”
Who could have predicted that his legacy at State would be reading the WPR practically out of existence?
On Thursday, Koh took point at a press conference selling the administration line. The next day, he went before the American Constitution Society, the progressive alternative to the Federalist Society, to give a strikingly self‐congratulatory speech about maintaining one’s integrity in “public service.” The relevant part starts at around 33:00 in. Highlights: “I’ve lived the life I wanted to live; I’ve said the things I wanted to say”…“I still believe in my principles”…“I never say anything I don’t believe”…“if you hear me say something, you can be absolutely sure that I believe it [including “the administration’s position on war powers in Libya”]”…“if I say it, I believe it, and I intend to stand by it”…“For what is a man?/what has he got? If not himself/then he has not…” (OK, not the last bit).
As I note in the column:
John Dean, who served prison time for his role in the Watergate cover‐up as a young White House counsel to Richard Nixon, once said that young people should be kept away from top executive posts.
They lacked the life experience and independence needed to resist falling under the spell of presidents who want them to bend or break the law.
Koh was in his mid‐50s when he joined the administration, coming off a distinguished career built on opposition to the Imperial Presidency. Yet the lure of being “in the room” when the big decisions are made seems to have turned him into the Gollum of Foggy Bottom.
Oh, and by the way, Charlie Savage reports today that piloted strikes continued past the 60‐day time limit, so even if Koh’s legal rationalization could pass the laugh test, it wouldn’t fit the facts we have.