Needless to say, Yale Law Professor Bruce Ackerman does not agree with his former colleague Harold Koh.

It has now been over three months since the first NATO bombs fell on Libya, yet President Obama has failed to request Congressional approval for military action, as required by the War Powers Act of 1973. The legal machinations Mr. Obama has used to justify war without Congressional consent set a troubling precedent that could allow future administrations to wage war at their convenience — free of legislative checks and balances.

Since the 1930s, it has been the job of an elite office in the Justice Department — the Office of Legal Counsel — to serve as the authoritative voice on matters of legal interpretation. The approximately 25 lawyers in this office write legal opinions after hearing arguments from the White House as well as other executive branch departments.

But not this time. After Caroline D. Krass, acting head of the Office of Legal Counsel, told the president that he had to abide by the act’s requirements, the White House counsel decided to pre-empt the Justice Department’s traditional role. As the war powers deadline approached, Mr. Bauer held a series of White House meetings at which he contested the Office of Legal Counsel’s interpretation and invited leading lawyers from the State Department and the Pentagon to join him in preparing competing legal opinions for the president […]

If the precedent Mr. Obama has created is allowed to stand, future presidents who do not like what the Justice Department is telling them could simply cite the example of Mr. Obama’s war in Libya and instruct the White House counsel to organize a supportive “coalition of the willing” made up of the administration’s top lawyers. Even if just one or two agreed, this would be enough to push ahead and claim that the law was on the president’s side.

This is the danger in the President’s Libya position. It has nothing to do with whether or not we should be engaged in the conflict – though I think it’s notable that, after yet another day of NATO bombing in Tripoli, Italy has broken from the coalition and called for a suspension of hostilities on humanitarian grounds. But with respect to the US, the problem has more to do with the precedent set by manipulating the Office of Legal Counsel process and basically averring unilateral warmaking powers.

Republicans are pressing this issue for nakedly political reasons; Mitch McConnell said that himself today. But that’s actually a virtue of partisanship. Divided government does increase checks and balances, and while it might be cynical, it at least allows the public to make a judgment on the issue, in this case of war powers. Whatever the reason for the dissent, I think the dissent has value, because I don’t want the next President, whoever he or she may be, to get the idea that they can go to war unilaterally without input from the Congress.

And I would add that, regardless of which resolution gets passed on Libya, one to support the mission in a time-limited fashion or one to cut funding for it, the very fact that Congress plans to legislate at all in this arena is a positive development. Just a couple months ago it didn’t look like anything would happen. There’s a contagion effect from Congress exercising its Constitutional responsibilities on war powers, and you could see that move to Afghanistan as well.

David Dayen

David Dayen

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