The most important thing we learn hearing that the Boy King disregarded the legal advice of OLC and the AG, together with DoD’s General Counsel isn’t the outcome. Presidents always make the call for the Executive Branch. Rather, it’s how the Administration got there. The informality raises questions for the future.
The specific issue is how to interpret “hostilities” in Section 5(b) of the War Powers Resolution. If the U.S. is deemed engaged in hostilities in Libya, that conclusion triggers termination events. People say they’re for an “expansive” definition of hostilities to end operations or a “narrow” one if they’re for the current situation. Put that aside.
Let’s turn to how the Administration made its decision. Usually, when a legal analysis of this magnitude confronts the Executive Branch, OLC serves as coordinator. OLC will typically reach out to affected agencies and departments. Then OLC renders a written formal opinion (even if third-tier law school junk retroactively withdrawn per last Administration).
Here the White House actively avoided that formal structure (and remove from the issue at hand, even if it’s more appearance than fact). Instead, the Administration specifically asked OLC initially only to provide informal advice. Meanwhile, the WH itself solicited legal opinions from around government. Apparently there were a few meetings and some phone calls. That’s it. Then the WH asked for submission of rival analysis. The politics are clear. Amorphous, informal = maximum control. It’s the Diet Coke of Donilon’s exhaustive whirlybird thing-a-jig.
Big problem. Such unstructured process is not a system that can support first rate legal decision-making. Even more than ‘policy’, law is dependent on structure, integration, coherence.