Libya, 'Hostilities,' the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation

Abstract:     
The Obama Administration has faced substantial criticism for both the substance of, and the process leading to, its conclusion that U.S. military involvement in Libya does not constitute “hostilities” for purposes of the War Powers Resolution. This short essay focuses on the process question. Although press reports depict a highly anomalous decision-making process - especially as relates to the Justice Department's Office of Legal Counsel (OLC) - it is not yet clear that those reports offer a completely accurate picture of what happened. Here I discuss what an appropriate process would have been, and underscore the short- and long-run institutional costs to the White House of departing from that process. In the course of doing so I also say a few things about my ongoing exchange with Bruce Ackerman over legal interpretation in the executive branch.

Number of Pages in PDF File: 14

Keywords: Office of Legal Counsel, White House Counsel, War Powers Resolution, Libya

Accepted Paper Series