The Koh-bama approach in Libya


President Obama seems intent on stretching the limits of our Orwellian disbelief. So here comes the $1 billion dollar question ($1 billion being the projected cost by September this year for whatever it is we’re doing in Libya): Are we at war in that country or not?

The official answer: Drones aren’t bombs and boots aren’t grounded and marching, so for the moment, the unilateral action we’re in is not “war.”

And don’t give me the trite line about how there’s “no such thing as being a little bit pregnant.”

Not if you want to be one of the president’s lawyers.

That’s where the real fight seems to be.

There is no “war” between the U.S. and Libya. It’s just a “war” between the White House lawyers.

More distressing is the key person in all this is none other than longtime community legal hero Harold H. Koh.

Koh is the former Yale Law School dean also known for being a stalwart working on behalf of immigrants. His profile is high enough that whenever there’s a hunt for a qualified Asian American on the Supreme Court, Koh’s name is always ginned up and placed on the short list.

But he’s also known for having strong views on curbing executive power, for example, the surveillance techniques of private citizens by the Bush Administration. Koh was a loud and critical voice when it came to curbing the power of the executive branch.

Apparently, however, that only applies when he’s not working for the executive branch.

Presently as the State Department’s legal counsel, Koh’s Libya opinion was one solicited by Obama, along with the opinions of the Justice Department’s Office of Legal Counsel.

Normally, the OLC rarely gets trumped. So when the OLC said the hostilities in Libya did require going to Congress under the War Powers Resolution, it should have been enough for the president to abide by.

Instead, Obama took Koh’s opinion and credibility to provide the needed cover to sidestep the Constitution and carry on in Libya.

“We are not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress,” Koh said in an interview last week with The New York Times. “We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”

It provides the basis for what could be Obama’s theory of war. War? What war? That’s not war.

Surprised by Koh’s response? Disappointed? Many people were. From the left and the right.

Jack Goldsmith, the former head of the Office of Legal Counsel under Bush, wrote in his blog, Lawfare: “Koh spent his entire academic career studying and writing about presidential war powers, including the War Powers Resolution. Based on this academic record, one would not have expected Koh to push an unusually narrow interpretation.”

Goldsmith suspects Koh could be merely serving his client, in this case the President and the State Dept, “faithfully.” He also mentions “Koh’s commitments to humanitarian intervention and the responsibility to protect as outweighing his academic vision.”

The Senate may yet bail the president out when it comes to the hard deadlines required by the War Powers Resolution. A Senate resolution proposed Tuesday by Sens. Kerry and McCain is intended as an alternative skirting of the War Powers Act.

But going forward Koh will always have a sticking point when it comes to his established views on executive restraint.

At least in the matter of Libya, Koh was the Obama’s chief enabler.

Emil Guillermo is an independent journalist/commentator.
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