OLC in the Clinton era—and today.

Dawn Johnsen, who has been nominated to head the Office of Legal Counsel in the Department of Justice and appears before the Senate Judiciary Committee for confirmation hearings Wednesday, hopes to clean the Augean stables. Johnsen—who worked in the OLC under President Clinton from 1993 to 1998 and headed the office, as acting assistant attorney general, from 1997 to 1998—has vigorously criticized the Bush OLC and, along with a number of other OLC veterans, cosigned a set of “principles” that repudiate some of the Bush OLC’s war-on-terror legal memos. For this reason, many people may believe that the Clinton and Bush OLCs gave substantially different kinds of legal advice and disagree about the contours of presidential power. As other veterans of the Clinton OLC have recently joined the Obama OLC, it is important to tell the full story.

It’s 1994 and a coup overthrows the government of Haiti. President Clinton prepares to launch a military invasion but the new government of Haiti backs down, and American troops enter Haitian territory to conduct peacekeeping operations. President Clinton does not have congressional authorization for the transfer of American troops onto potentially hostile soil. However, OLC argues that the deployment of troops “accord[s] with” an appropriations bill that barred the use of appropriated funds for military operations in Haiti unless justified by U.S. national security interests. The appropriations bill did not by its terms authorize anything. OLC further explains that the president does not need congressional authorization under the Constitution’s Declaration of War clause when “the deployment [takes place] with the full consent of the legitimate government of the country involved.” Such an event is not a “war” even if it could quickly turn into war. In addition, the War Powers Resolution, which limits the circumstances under which the president may use troops, does not apply “where the risk of sustained military conflict [is] negligible.”

In 1995, President Clinton decides that U.S. forces should enter Bosnia and Herzegovina to enforce a fragile peace agreement. OLC finds itself unable to rely on an appropriations bill. Instead of citing a statute, OLC notes that the president has the “power to deploy troops abroad without the initiation of hostilities,” citing historical practice and, yes, the president’s Commander in Chief power, the much criticized constitutional basis for many Bush-era OLC opinions. In this case the risk of sustained military conflict is not “negligible.” But that no longer matters. Because the parties have consented to the deployment of troops, there is still no “war,” and neither the Declaration of War clause nor the War Powers Resolution applies.

In 1999, President Clinton orders a massive air bombardment of Serbia. Congress again refuses authorization; indeed, the bill to authorize military operations is voted on but fails to pass. It is impossible to argue that the risk of sustained military conflict is “negligible” and that the Serbs have consented to the bombardment of their own country. OLC rests its case on an appropriations statute enacted after the commencement of hostilities. President Clinton sent American troops into action and then dared Congress to deny them funding. Trapped, Congress reluctantly authorized funds. For the OLC, the War Powers Resolution does not stand in the way of the war because of the appropriations statute even though the War Powers Resolution says that appropriations statutes don’t count as congressional authorization. That Resolution is gutted; the Haiti and Bosnia opinions are forgotten. The OLC also does not bother to address whether the Kosovo intervention violated international law, which it most certainly did, as the UN charter prohibits wars unless they are in self-defense or have Security Council authorization. The Kosovo intervention satisfied neither of these conditions.

These were not even the most dramatic cases. In 1996, President Clinton sought to put American troops under UN control in Bosnia. OLC declared that a bill that specifically prohibited the use of congressionally appropriated funds for that purpose “unconstitutionally constrains the President’s exercise of his constitutional authority as Commander-in-Chief.” In a 1994 memo, OLC observed that the president should ignore statutes that “encroach upon the constitutional powers of the Presidency,” especially “provisions limiting the President’s authority as Commander in Chief.” The memo barely mentioned the Supreme Court’s Youngstown case, which provides the standard framework for evaluating presidential power. Other Clinton-era OLC opinions, such as the 1996 Bosnia opinion, didn’t mentioned it at all. A similar omission in one of the Bush OLC’s memos was cited by law professors around the country, who told journalists that it revealed the fatal incompetence of the memo’s authors.

And then there are the gaps in the record. In a 2005 op-ed in the New York Times, Michael Scheuer noted that the program of rendering al Qaida suspects to places like Egypt, where they were likely to be tortured, originated in the Clinton administration, where it was “approved by a vast cohort of lawyers at the security council, the Justice Department and the C.I.A. itself.” The 9/11 Commission report strongly implies that in 1998 top Justice Department lawyers approved an order to capture or kill Osama bin Laden in Afghanistan, reasoning that the United States and al Qaida were (already!) at war, and that detention or assassination of an enemy combatant does not violate the laws of war. If such an opinion exists, it has never been disclosed to the public.

The Clinton OLC put into place all the elements of the Bush OLC’s legal justification for war-on-terror activities. The president can go to war on his own authority; he can conduct the war as he sees fit; a war can exist between the United States and a non-state entity such as al Qaida; Congress’s ability to interfere is limited by the president’s constitutional powers, including his Commander in Chief power. International law may be ignored. Legal opinions may be kept secret. And, no, you don’t have to address the Youngstown case. Is there any reason to think that the return of Clinton’s appointees will change all this?

Perhaps, they have learned their lesson and will stand up to President Obama in a way that they never did with President Clinton. One can be forgiven for being skeptical. Consider the “principles” for OLC conduct that Johnsen and her coauthors advocate. OLC opinions should provide “an accurate and honest appraisal of the law” (principle #1) and should “reflect all legal constraints” (principle #2) but should also reflect “the institutional traditions and competences of the executive branch as well as the views of the President who currently holds office” (principle #4)—traditions that encompass broad war-making powers, as the Clinton OLC repeatedly noted. Indeed, “on very rare occasion[s],” the executive branch may “decline[] to follow a federal statutory requirement” (principle #5). Here, the executive branch “typically should publicly disclose its justification” (principle #5)—“absent strong reasons for delay or nondisclosure” (principle #6), for example, as the accompanying text indicates, involving “national security matters.”

One cannot say for certain whether the Clinton-era OLC would always have gone as far as Bush’s OLC when confronted with specific presidential demands for authority during an emergency. But in light of the record of repeated acquiescence in a less dangerous time—and no public evidence that the Clinton OLC ever said “no” to Clinton on a national security matter—the critique of presidential power offered in public from 2001 to 2009 rings hollow. The Clinton officials cheerfully loaded the revolver of presidential power and handed it over to the Bush administration.

A month ago one might have advised the Senate Judiciary Committee to ask Johnsen, in light of her critique of the Bush administration, which of the Clinton-era OLC opinions she planned to withdraw. However, it already appears that the Obama administration’s position on war-on-terror related legal issues—from the state secrecy privilege to rendition, detention, habeas corpus, and targeted killing—has more in common with the Bush administration’s than with the Bush administration’s critics’. Accordingly, perhaps senators should instead ask Johnsen which of her criticisms of the Bush administration’s legal position she no longer believes.

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