During my first semester of law school one of my professors said something that has stuck with me ever since. He said that the study of law was unlike any other subject we had studied before because there was almost never a right answer. There are plenty of wrong answers you can give, but almost never a verifiably correct answer. It’s not like first grade mathematics where 2+2 must always =4. In legal analysis, all you can do is give arguments, and at different times, before different audiences and under different circumstance the exact same argument can produce different results.

That was a tough philosophical concept to wrap my head around and I sometimes still struggle with it to this day. Part of this stems from the fact that what issues your attention are drawn to in your analysis process depend on who your “client” is. When writing an academic paper or blogpost frequently your “client” is yourself, you are arguing your own views, as I am doing now. How you approach your analysis is greatly influenced by where you begin that analysis, who’s interest are you defending?

This has been demonstrated dramatically in the recent flap over the President’s decision to overrule the advice given by the Office of Legal Counsel with respect to his continuation of activities in Libya without going to Congress for authorization under the War Powers Act.

Let’s take a look at the various lawyers who weighed on that decision and how the needs of their respective clients may have influenced their analysis:

1) The White House Counsel- Traditionally, the role of the White House Counsel has been to be the President’s lawyer, not the government’s lawyer. The President, individually, is his client. The White House Counsel’s job is to lay out all the arguments that are available to defend whatever policy position the President is thinking of taking. Then, as with any other client, the President makes the business decision of whether or not he believes the given argument is within his comfort level such that he is willing to move forward with that policy choice. The White House Council’s job is NOT to advise the President about what the BEST choice is.

BTW, I like and admire Bob Bauer and think he is a good egg, but to my knowledge he is not an expert in the law of war or the constitutional limits on presidential war making authority.

2) The Legal Advisor to the State Department- Can have several different clients depending on circumstances, but in this instance it appears that his only client was the Secretary of State. He appears to confirm this in a speech he gave this week to the American Constitutional Society (ACS). Jack Goldsmith pointed out that the advice which Legal Advisor Harold Koh gave on the Libya issue differed markedly from the advice Professor Harold Koh had taken earlier in his career. Koh addressed that dichotomy in his ASC speech. I can see why finishing off Gaddafi might be a policy decision that the Secretary of state would want. As her lawyer, of course, Koh’s analysis would be focused on which arguments might be available to support her position.

3) The General Counsel of the Department of Defense- Can also have several different clients depending on the circumstances. In this circumstance, I believe he had two clients: the SecDef and the rank and file members of the military who are engaged in our activities in Libya. When I first began thinking about this, it occurred to me that there could be a conflict between the positions of the two clients. At the time, I did not know what the SecDef’s individual policy preference might be. When you represent more than one client and their needs are in conflict, sometimes you have to jettison one client or the other.

However, if the analysis takes off from the position of what is the best legal position for the troops, it’s pretty clear why the argument would have to be in favor of requiring the President to get authorization for Congress. The troops are not supposed to obey unlawful orders. As long as the authority of the President to continue to order them to perform activities in Libya is suspect, they have potential legal exposure under both domestic and international law. No lawyer advises his clients to do things that open themselves up to liability. And DOD GC Jeh Johnson argued that the President was required to seek Congressional authorization. Glennzlla has a nice piece on it.

It might also be because when you are the senior legal official of the Department of Defense, you have to reach the best legal judgment you can about what the warfighter has the authority to do or not do.     

In response to a question about whether service members engaged in the Libya action are receiving combat pay, Eileen M. Lainez a DOD Spokeswoman tells me

“There is no ‘combat pay’ — “Combat pay” is a colloquialism some use to refer to additional pays (Imminent Danger Pay and Hostile Fire Pay) received in excess of the pay and allowances received in typical duty assignments. These pays are not limited to combat zones.
Imminent Danger Pay is paid to a member on duty in an area designated as an imminent danger area. An imminent danger area is one in which a member is subject to the threat of physical harm or imminent danger because of civil insurrection, civil war, terrorism, or wartime conditions.
The IDP designation includes the waters around, and airspace above, Libya.
Combat zones are designated by Executive Order; Libya has not been designated a combat zone.
For background, other countries not designated combat zones, but where service members may receive IDP, include Haiti and the Sudan.”

[emphasis mine]

So, the fact that service members have been receiving Imminent Danger Pay might seem to undercut the President’s position that whatever they are doing in Libya does not constitute “hostilities”.
Subsequently, Secretary Gates issued a statement that the President was not in violation of the War Powers Act so, in this analysis, I guess the needs of DOD has a whole trumped the policy preference of the SecDef.

Speaking of conflicts of interest, I should disclose that I have known Jeh Johnson for a good 20-ish years, admire him and consider him a friend, so administer your grain of salt. The fact that he appears to be on what I think is the correct side of this argument though, has less to do with friendship and I think more about who his “client” is and how the needs of that client influenced the analysis outcome. I will point out though, that of all the lawyers who weighed in on this decision, only Jeh has expertise in law of war and has on his staff the super duper experts in law of war, which makes his opinion weightier than it might otherwise be.

4) The Office of Legal Counsel- Has a unique client, the Constitution. This office is the only law firm within the government which has the job of determining the constitutional limits on Executive Power.
While OLC will routinely solicit both the policy views of executive branch agencies and call upon their specialized legal analysis for matters within their own purview, it is OLC which ultimately reconciles these opinions based on the analysis of what does the constitution allow. While it is technically possible for the President to reject or override an OLC opinion, it is extremely rare to do so. OLC is normally staffed with the best and brightest lawyers –and with the exception of the birdcage liner opinions churned out by John Yoo—the opinions issued by OLC are normally very thorough and well argued, so the political price of not following them is usually too high for any president to brave.

The Attorney General has endorsed and supported the opinion of OLC that the President is required to go to Congress to continue the Libya activities beyond the 90 day limit. This is the second time the President has failed to follow the AG’s advice on something important, first the KSM trial, now the War Powers Act. How Holder can bear to stay on in the face of these repeated “no confidence” votes from POTUS is beyond me.
– – – – – –
Some members of Congress (I’m looking at you, John McCain) are now kicking around the idea of covering the President’s behind by granting him authority even without him having to ask for it. They are throwing away their constitutionally mandated war declaration powers with both hands and further consolidating dictatorial power into the Executive. However, Politico reported this morning that this idea may not have support on either side of the aisle, despite direct lobbying by Secretary Clinton.

Finally — bi partisan consensus!

Update: Siun tells me that the House just voted NOT to give the President the authority to continue.

Whitney tells me vote to defund could come this afternoon.

Update 2: The House did NOT pass the resolution to defund tha Libya  activity

Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.

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