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

Harvard Law Review Forum, Vol. 124, p. 62, 2011

Columbia Public Law Research Paper No. 11-276

14 Pages Posted: 27 Jun 2011 Last revised: 11 Jul 2011

Trevor W. Morrison

New York University School of Law

Date Written: June 24, 2011

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.

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

Suggested Citation

Morrison, Trevor W., Libya, 'Hostilities,' the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation (June 24, 2011). Harvard Law Review Forum, Vol. 124, p. 62, 2011; Columbia Public Law Research Paper No. 11-276. Available at SSRN: https://ssrn.com/abstract=1872023

Trevor W. Morrison (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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