Saturday, June 18, 2011
Long-standing fans of the back-and-forth will remember the enormous grief that the Bush administration got for following the opinions of the Office of Legal Counsel, particularly on the question of enhanced interrogation (or, if you are a liberal, "torture"). The accusation was, more or less, that the OLC's incumbent, John Yoo, was turning analytical cartwheels to arrive at the result that Dick Cheney wanted. Well, it turns out that on the question of the Libya war, Barack Obama overruled the OLC.
President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.
As both the New York Times and John Elwood point out, it is "extraordinarily rare" for a president to overrule the OLC -- prior to Barack Obama, the last president to do it was FDR. Obama has now done it twice. Perhaps the president has such confidence in his own legal acumen that he does not need no stinkin' OLC approval. It brings to a mind the old adage that a lawyer who represents himself has a fool for a client.
In any case, we await with bated breath -- not -- the sanctimonious bleating about the "rule of law," which inevitably erupts from the press and academia during Republican presidencies.
In principle, I have no problem with Obama overruling the OLC. For one thing, he's finally acting like a guy in charge. Snark aside, though, whether he's right or wrong in the particular instance in rejecting this particular bit of advice, it's important to remember that the OLC works for the President, not the other way around. The lawyers advise; they do not direct.
Far too often actual control and direction is surrendered to the support staff--the lawyers or personnel--by the one person nominally in charge.
Ah, then Eric would say if Bush had received advice from the OLC that enhanced interrogations would violate US law, and went ahead with them anyway, he would support that decision, right?
The OLC exists to advise the President so he does not do legally stupid shit. If Obama has this kind of respect for lawyers that he has hired himself, how much respect do you think he has for the Supreme Court?