I missed this when it first got posted but Eric Posner has a very informative post on the origins of the acquiescence shown by the Office of Legal Counsel to the Office of the Presidency when it came to national security and the prosecution of war. The OLC’s stance on these issues was pretty well established in the Clinton Administration. When you read the following excerpt, keep in mind that a whole host of Clinton appointees have come back or are coming back to the Justice Department now that Barack Obama is President:
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 [Dawn] Johnsen [who was appointed by President Obama to head the OLC] 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.
Funny enough, the usual suspects are muttering phrases like “King Barack.” I guess they like executive power now.