The NYT‘s Charlie Savage has confirmed that the President overruled the Department of Justice Office of Legal Counsel’s opinion of what constitutes “hostilities” under the War Powers Resolution, preferring instead the conclusion reached by the White House Counsel’s office and the State Department’s Harold Koh. In another story earlier this week on the Administration’s explanation to Congress that U.S. participation in NATO operations in Libya do not constitute “hostilities” under the law, Savage reported that White House Counsel Bob Bauer refused to say whether the Administration’s position was based upon an OLC opinion. Now, however, Savage is able to report that the Administration rejected the legal position of both OLC and that of Defense Department general counsel Jeh C. Johnson.
Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch. . . .
The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.
In this case, however, [acting OLC head Caroline] Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.
A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.
The story quotes former Clinton OLC head Walter Dellinger saying the Administration’s legal conclusion was “defensible” despite the problematic decision-making process. Former Bush OLC head Jack Goldsmith, on the other hand, finds the Administration’s position “aggressive” and unpersuasive.