Syria Insta-Symposium: Did Obama Consult His Lawyers Before War Powers About-Face?

by Peter Spiro

Doesn’t sound like it, if you read between the lines of this AP account. Until Friday, everyone was assuming that congressional pre-clearance was not constitutionally required or otherwise warranted.

Obama’s national security team was in agreement that while consulting with Congress was critical, there was no need for formal approval, officials said. Seeking a vote in Congress to authorize a strike wasn’t even an option on the table.

You have to guess there were memos to that effect bouncing around State and Justice. Obama turned around on a dime after a long walk with Denis McDonough. No lawyers anywhere in this photo. Smart money also says that nobody outside the White House scrubbed the draft authorization the President sent over to the Hill. [I'm making a process point here - I'll hold off for the moment responding to the substance of Marty and Deborah's excellent posts below, but I think even they would concede that a credible-enough argument could be made to back up a decision not to seek congressional assent.]

Does it make any difference that the lawyers weren’t in on it? Not necessarily, of course. Everyone likes to point out that Obama is himself a constitutional lawyer who advocated robust congressional war powers as a member of the Senate.

But you have to wonder if he wouldn’t have provoked some stiff resistance from OLC and the Legal Adviser’s Office if the option had been vetted below.

It also raises the odds of unintended consequences down the line. Bad things happen when the lawyers are called on to reverse-engineer decisions taken above their heads. (Quite a contrast to the Libya encounter with the War Powers Resolution, in which Harold Koh, OLC acting head Caroline Krass and DoD general counsel Jeh Johnson brought their disagreement to Obama in full dress argument.) Another reason to think this may play out in unexpected ways.

UPDATE: An informed reader tells me that that new NSC Legal Adviser Brian Egan is in the Oval Office meeting (seated second from the left, between Brian McKeon and Tony Blinken); apologies for the error. So there was at least one lawyer participating in the deliberations. Still a completely different story than the battle of legal titans over Libya.

A couple of others have responded along the lines of, what difference does it make. As I say above, it’s possible that it doesn’t make any difference at all. But the lack of full legal vetting does raise the risk of error. One manifestation: there seems to be some confusion about whether Obama is claiming that he could proceed with the strike even if he doesn’t get the thumbs up. Does it also mean we will have no formal OLC opinion on the question? If not, the precedent is less easily cabined in the way that Marty, Jack, Deborah, and others assume it will be.

http://opiniojuris.org/2013/09/01/syria-insta-symposium-obama-consult-lawyers-war-powers-face/

2 Responses

  1. I understand that Obama had previously claimed (in 2007) that Congress should be consulted before going to war. Did he suddenly remember he had said this or was it the failure of Cameron in the UK to get support for a strike on Syria through the British parliament?

  2. I don’t understand what you think the lawyers would have told him. Even if formal approval isn’t legally required*, surely there are no constitutional or statutory provisions violated by the President’s course of action. At worst it transgresses an old-boys-club gentleman’s agreement to leave the next President with more power than your predecessor left you.
     
    *Which is far from clear despite the reification of a barely 60 years of practice as black letter constitutional law.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.