By Michael Isikoff National investigative correspondent
NBC News
updated 6/21/2011 6:09:46 AM ET 2011-06-21T10:09:46

The White House bypassed the administration’s own written guidelines for resolving major legal disputes when it overruled the Justice Department’s advice that the president seek congressional approval for U.S. military operations in Libya, according to some legal scholars.

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The disclosure over the weekend that President Barack Obama rejected the advice of senior Justice Department legal advisers — including Attorney General Eric Holder — has drawn sharp congressional criticism in recent days, ranging from House Speaker John Boehner to liberal Democrats such as Rep. Jerrold Nadler of New York.

It is also provoking debate among legal scholars, some of whom told NBC News that they were unaware of any recent precedent for the way the White House reached its legal conclusions about Libya. One top former legal adviser to Obama, Dawn Johnsen, called the accounts of the White House's handling of the matter "disturbing." 

"There may be a precedent for this, but I can't think of one," said Robert Chesney, a University of Texas law professor who specializes in national security law. "This is not the way the process is supposed to work."  

For decades, Chesney and other legal scholars said, legal and constitutional questions within the government have been resolved by the Justice Department's Office of Legal Counsel (OLC). Just last year, a six-page Justice Department memo described OLC's mission as providing "controlling advice" to executive branch officials on questions of law.

The memo spelled out how the office's decisions were supposed to be reached: After receiving input from agencies throughout the government, OLC lawyers would provide "principled" legal analysis to executive branch officials, not opinions "designed merely to advance the policy preferences of the president or other officials."

Are drone strikes 'hostilities'?
In this case, administration officials say,  the OLC — backed by Holder — concluded that sustained U.S. support for the NATO campaign against Libya, as well as some of its elements — including  U.S. drone strikes — amounted to "hostilities" as defined by the Vietnam-era War Powers Act.

As a result of that conclusion, the president would be obligated to seek congressional approval for continuing U.S. support for the NATO air campaign in Libya, it said.

Rather than permit OLC to vet the issue, the White House adopted an unusual and far more informal procedure: It instructed lawyers for key government agencies, including the State and Defense Departments, to submit their views directly to White House Counsel Bob Bauer rather than the Justice Department office, administration officials said. 

Bauer, who left the White House on Friday to return to his law firm (where he will serve as a campaign lawyer for Obama), then passed along the views directly to the president.

Obama, who was once a constitutional law professor at the University of Chicago, concluded he did not need congressional approval for continuing the Libya campaign. His rationale, administration officials have said, was that the operations in Libya did not involve "sustained fighting" or any U.S. ground troops and there was "no exchange of fire with hostile forces." 

In doing so, Obama not only rejected the views of Holder and OLC's acting chief, Caroline D. Krass, he also overruled Jeh C. Johnson, the Defense Department's chief legal counsel. He sided instead with a more favorable analysis provided by Harold Koh, the State Department's chief legal adviser.

Legal scholars acknowledge that the president is always free to ignore the advice he receives from OLC and interpret the War Powers Act as he sees fit. (And most presidents have taken the view that the law is unconstitutional.) But some who have been closely aligned with Obama said they were surprised and disappointed that the White House would bypass the one legal office that is supposed to provide neutral legal advice devoid of any political influence.

Ex-Obama adviser calls reports 'disturbing'
"The recent reports are disturbing," said Johnsen, an Indiana University law professor who served as a key member of Obama's Justice Department transition team and was later nominated (but not confirmed) to head OLC.

Johnsen emphasized in an email that "we don't have all the details yet," but added: "It is critical that the traditional central role of the Justice Department and its Office of Legal Counsel be respected, which includes OLC — not the White House counsel's office — formulating legal advice based on input from all affected agencies."

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White House Press Secretary Jay Carney on Monday vigorously defended the president's handling of the War Powers Act issues, telling reporters "there was an informal discussion" of the different legal views within the administration.

Read more reporting by Michael Isikoff in 'The Isikoff Files'

"The point is, it's the president's decision to make," Carney said. "Views were solicited and were shared. The president heard, was aware, of all the arguments here. This is obviously a matter where there's been disagreement since the moment it (the War Powers Act) was passed."

In a follow up email exchange, White House press spokesman Eric Schultz declined to address questions about the why the president chose to bypass the traditional legal vetting process of OLC. 

"The Justice Department has stated publicly that its views were heard and that the president made his decision as was appropriate for him to do," Schultz wrote. "What's beyond dispute is the fact that we have averted a massacre (in Libya), saved thousands of lives and reversed the advance of (Libyan strongman Moammar) Gadhafi's forces, giving the Libyan people a chance to determine their future. We have also kept the president's commitment to transfer responsibility [to] our coalition partners for the enforcement of the civilian protection mission, and are now in a support role."

Office was focal point during Bush presidency
The questions about the White House process have gotten particular attention because of the multiple controversies involving the OLC during George W. Bush's presidency. In those cases, political critics, including Democrats in Congress, accused political appointees at OLC of twisting the law on torture, electronic snooping and other terrorism-related issues in order to accommodate the policies of the Bush White House.

But in those cases, some legal scholars said, the Bush White House followed the traditional process of seeking written opinions of OLC to provide legal justification for its conduct. Jack Goldsmith, who at one point headed the OLC under Bush and later resigned after clashing with White House officials, wrote in a blog post over the weekend that the accounts of the White House deliberations over Libya were "amazing."

"This is not a process designed to produce a sound legal decision," wrote Goldsmith, now a professor at Harvard Law School. "When the president effectively decides the legal question in the first instance based on the input of interested agencies, his legal judgment is inevitably skewed a great deal by wanting to uphold his policy."

Goldsmith added: "I discount the legal input of the White House counsel; Bob Bauer is a smart man, but neither he nor his office is expert in war powers or situated to offer thorough legal advice on the issue."

Rep. Nadler, who vociferously criticized OLC opinions during the Bush years and called for investigations of the lawyers that wrote them, said he sees a difference between the Bush OLC torture opinions and Obama's handling of the Libya question.

The Bush-era OLC opinions justifying waterboarding and other presidential policies were "totally dishonest," he said. "This is somewhat different." But Nadler said the White House's handling of the issue was "unusual and fraught with danger" and that the legal conclusion that U.S. drone strikes do not constitute "hostilities" under the law was "ridiculous."

"This is the way technologies (for war) has evolved," he said. "We'll rarely have soldiers on the ground. It will all be done by people at Fort Campbell who will be sitting at computers playing video games and killing people."

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Video: Graham: Congress needs to ‘shut up’ about Libya

  1. Transcript of: Graham: Congress needs to ‘shut up’ about Libya

    MR. GREGORY: All right, let me spend a few minutes on foreign policy here because Congress Republicans really bucking the president's version of foreign policy . And let me start with Libya , the fight over whether the president needs specific authority from Congress to wage this effort. And the big question, are there actually hostilities involved? The White House issued a report saying U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops . Are there hostilities? House Speaker Boehner said, "Come on, this is ridiculous."

    REP. BOEHNER: We're part of an effort to drop bombs on Khaddafy 's compounds. I don't know -- I just -- it doesn't pass the straight face test, in my view, that we're not in the midst of hostilities.

    MR. GREGORY: So why shouldn't there be specific approval from Congress to wage whatever we're waging there, Senator? Senator Graham , I'll start with you.

    SEN. GRAHAM: Oh, you talking to me, David ?

    MR. GREGORY: Yeah.

    SEN. GRAHAM: Well, you know, one, I would take the course that conservatives have been taking for the last 30 years. The War Powers Act is unconstitutional, not worth the paper it's written on. It requires congressional approval before the commander in chief can commit troops after a certain period of time, and it would allow troops to be withdrawn based on the passage of a concurrent resolution never presented to the president. So I think it's an infringement on the, the, the power of the commander in chief. The president's done a lousy job of communicating and managing our involvement in Libya , but I will be no part of an effort to defund Libya or to try to cut off our efforts to bring Khaddafy down. If we fail against Khaddafy , that's the end of NATO . Egypt 's going to be overrun and the " Mad Dog of the Mideast ," what Ronald Reagan called Khaddafy , if he survives this, you're going to have double the price of oil that you have today because he will take the whole region and put it in, into chaos. And I will be -- I won't be any part of that. So from my Republican point of view, the president needs to step up his game in Libya , but Congress should sort of shut up and not empower Khaddafy . Because he wrote a letter to the Congressional leadership basically thanking them for their involvement in trying to end this conflict.

    MR. GREGORY: Well, it's interesting, Senator Durbin , you are on opposite sides of this. You do think the president should get specific authority from Congress to do this. What about the view that you're sort of giving some aid and comfort here to Republicans who simply just want to buck the president on any foreign policy goal. Your own leader in the Senate , Harry Reid , said, "No, we don't need a War Powers approval resolution here." Yet, you disagree.

    SEN. DURBIN: I respect Harry Reid very much and certainly the president, as you know, but I respectfully disagree. It's true. The War Powers Act is an infringement on the president's power as commander in chief. So is the Constitution , which makes it clear the American people make decisions about going to war through members of Congress . The president's doing the right thing. What we have here, this would be "butcher of Benghazi ," Khaddafy , needs to be stopped so he doesn't kill innocent people. The president brought together the Arab League , the United Nations , and NATO and said we are going to play a supportive rule -- role, no ground troops . We're going to have a limited duration conflict to stop Khaddafy . That was the right thing. But I think that the War Powers Act and Constitution make it clear that hostilities by remote control are still hostilities. We are killing with drones what we would otherwise be killing with fighter planes. And we are engaged in hostilities in Libya . What we should do is act on a timely basis to pass congressional authorization under the War Powers Act . I reject the Republican approach, which has been suggested by Speaker Boehner and others to cut off the troops. It would give solace to Khaddafy . It would undermine the people who are resisting him in that nation, and I agree completely with Lindsey Graham . It would call into question the future of NATO .

    MR. GREGORY: All right. But -- well, first of all, we don't have any troops over there. Senator Graham , the reality is, what are we doing? What is the endgame? I mean, you talk about it would be the end of NATO , but what NATO has done for several months hasn't worked. So, I mean, there is this criticism of you...

    SEN. GRAHAM: Well, I would argue...

    MR. GREGORY: ...and others which is that the advocacy for sort of perpetual war when we don't seem to have a plan.

    SEN. GRAHAM: Well, we do. We had an opportunity to end this very quickly. The day you took American air power out of -- off the table, NATO became a weakened organization. But we are making progress. Khaddafy is on his last leg. The rebels are getting stronger. They've taken the fight to Tripoli . I said about four weeks ago, "Go after Khaddafy 's inner circle, break their will." We're pounding Tripoli . But the big mistake was to take American air power off the table. What I would like to see is for America to rejoin NATO when it comes to an aerial bombardment. We don't need ground troops . And if you don't think Khaddafy surviving affects America 's national security interests. We're just on different planets. If this guy survives, it's the end of NATO , our standing in the world goes down, Egypt gets overrun by refugees and the Mad Dog of the Mideast , Khaddafy , is out of his cage, and you're going to see oil prices double.

    MR. GREGORY: All right. Let me...

    SEN. GRAHAM: You will see Iran recalculating.

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