SALON– The growing controversy over President Obama’s illegal waging of war in Libya got much bigger last night with Charlie Savage’s New York Times scoop. He reveals that top administration lawyers — Attorney General Eric Holder, OLC Chief Caroline Krass, and DoD General Counsel Jeh Johnson — all told Obama that his latest, widely panned excuse for waging war without Congressional approval (that it does not rise to the level of “hostilities” under the War Powers Resolution (WPR)) was invalid and that such authorization was legally required after 60 days: itself a generous intepretation of the President’s war powers. But Obama rejected those views and (with the support of administration lawyers in lesser positions: his White House counsel and long-time political operative Robert Bauer and State Department “legal adviser” Harold Koh) publicly claimed that the WPR does not apply to Libya.
As Savage notes, it is, in particular, “extraordinarily rare” for a President “to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice.” Just imagine if George Bush had waged a war that his own Attorney General, OLC Chief, and DoD General Counsel all insisted was illegal (and did so by pointing to the fact that his White House counsel Alberto Gonzales and a legal adviser at State agreed with him). One need not imagine this, though, because there is very telling actual parallel to this lawless episode:
In 2007, former Bush Deputy Attorney General James Comey testified to the Senate Judiciary Committee about an amazing event. Bush’s then-Attorney General, Alberto Gonzales, had blocked Comey from testifying for two years — once Democrats took over Congress, that obstruction was no longer possible — and it quickly became apparent why Gonzales was so desperate to suppress these events.
Comey explained that, in 2004, shortly after he became Deputy AG, he reviewed the NSA eavesdropping program Bush had ordered back in 2001 and concluded it was illegal. Other top administration lawyers — including Attorney General John Ashcroft and OLC Chief Jack Goldsmith — agreed with Comey, and told the White House they would no longer certify the program’s legality. It was then that Bush dispatched Gonzales and Andy Card to Ashcroft’s hospital room to try to extract an approval from the very sick Attorney General, but, from his sickbed, Ashcroft refused to overrule Comey.
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Written by Glenn Greenwald