OLC Memo as Time Machine

I’m going to have more to say about the Libya memo the Administration released yesterday. But I just wanted to point out something about the structure of it.

Here’s the first paragraph:

This memorandum memorializes advice this Office provided to you, prior to the commencement of recent United States military operations in Libya, regarding the President’s legal authority to conduct such operations. For the reasons explained below, we concluded that the President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest. We also advised that prior congressional approval was not constitutionally required to use military force in the limited operations under consideration. [my emphasis]

This is not the advice authorizing the Libyan engagement. Rather, it is a document written the day after–the memo notes–the Administration turned over control to NATO, claiming to memorialize the advice given before the Libyan engagement (therefore, presumably, before March 19).

Is this all the advice OLC gave the President? Did OLC authorize further activities? Did Obama’s description of why bombing Libya was in the national interest before March 19 match what appears in this memo, written after the fact?

This fundamental structural reality is all the more striking given the role of Section I of the memo: it provides a narrative of the Libyan engagement starting in mid-February and leading right up to the March 31 turnover of control to NATO. In other words, a key function of this memo is to provide the Administration’s own mini-history of the Libyan engagement, written the day after an artificial “end date” for the engagement, which it uses to lay out the national interest of bombing Libya and the limits to our engagement in it that the memo says justify the engagement. Two key elements in this history–Obama’s address to Congress on March 21 and his address to the nation on March 28–took place after the real advice OLC offered Obama to authorize this engagement.

But the memo claims to have offered its advice before the start of the bombing. It is basically using Presidential statements made up to 9 days after the advice it gave to “memorialize” the advice it gave 9 days earlier. The memo uses limits Obama described after the advice was actually given to claim the advice itself had limits.

I’m envisioning a discussion like this:

Bob Bauer: Caroline, can you give us a verbal okay for this engagement?

Caroline Krass: Do you want a written memo?

Bauer: Not yet. Let’s wait until it’s all done so we can tailor the legal authorization of it to what we really end up doing. It’ll make it easier for us to thread the needle between authorizing what we do while still claiming to believe Executive Power is limited.

Krass: Okay, Bob.

Pretty remarkable, isn’t it, the way a memo written after the fact authorizes precisely the engagement that Obama ultimately used, all the while highlighting limits to the use of unilateral presidential power?

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+0Email to someone

0 Responses to OLC Memo as Time Machine

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
  • 15
  • 16
  • 17
  • 18
  • 19
  • 20
  • 21
  • 22
  • 23
  • 24
  • 25
  • 26
  • 27
  • 28
  • 29
  • 30
  • 31
  • 32
  • 33
  • 34
  • 35
  • 36
  • 37
  • 38
  • 39
  • 40
  • 41
  • 42
  • 43
  • 44
  • 45
  • 46
  • 47
  • 48
  • 49
  • 50
  • 51
  • 52
  • 53
  • 54
Emptywheel Twitterverse
bmaz More Catcalling Debate Room Needed at New York Times https://t.co/Caw8SuM3MH Whereas @ScottGreenfield @gideonstrumpet and I fill the void
1mreplyretweetfavorite
emptywheel @Dymaxion Will they at least permit enough filmmakers to survive to film the dystopia as documentary? @matthew_d_green
9mreplyretweetfavorite
emptywheel @Dymaxion True. Though the feudal lords didn't have robots. @matthew_d_green
10mreplyretweetfavorite
emptywheel @matthew_d_green Feudalism worked fine for centuries. Biggest inconvenience is finding places to ski @Dymaxion
15mreplyretweetfavorite
bmaz @KagroX Yer gonna need the guns when Kaci Hickox comes for you on her bicycle.
56mreplyretweetfavorite
bmaz RT @mtaibbi: Reporting on a misuse of an off-the-record conversation is the same mistake, just magnified. And by the NYT? http://t.co/dYKOq
1hreplyretweetfavorite
bmaz RT @EliGP: Formula 1's big teams react to smaller teams' concerns: http://t.co/otoopgYHdK
2hreplyretweetfavorite
bmaz @JustinRaimondo @towards_freedom But they won't if a wing nut Republican wins?
2hreplyretweetfavorite
bmaz @ScottGreenfield @lawfareblog @OrinKerr @granick You saw my opening salvo I presume.
2hreplyretweetfavorite
bmaz @ScottGreenfield @lawfareblog @OrinKerr @granick Ah, top of the morning to you Mr. Greenfield.
3hreplyretweetfavorite
bmaz Okay, CNN International simulcast is great. Just did a report on the scary clown ban in France. Now that is news I can use. #BanClowns
5hreplyretweetfavorite
bmaz @LegallyErin The report I just saw on CNN looked pretty awesome. Wind and waves onto roads and all kinds of good stuff.
5hreplyretweetfavorite