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?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. earlofhuntingdon says:

    Just routine. The secret to good memo writing is to get the facts straight first.

    Haven’t the banks dispensed with the notion of time’s linearity in “reconstructing” their mortgage paperwork. I think that’s called creative zest or being pragmatic. In the old days, it would have been called fraud.

  2. bmaz says:

    Let me modify one little aspect; this should read:

    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 and account for the pro and con arguments that Greenwald/Wheeler and Wittes/Chesney/Goldsmith let fly with, that way we can really wax it maximally. 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.

  3. donbacon says:

    So long as the Congress is constitutionally AWOL on war the executive has free reign to do what it wants and justify it with moonbeams. Senator Paul recently tried to put an anti-war rider on a bill and all 53 donkey Senators voted against it.

    Make fun of the Constitution-wavers if you will, but on war issues, debate on war and congressional action would not only be legal (despite what the OLC claims) but also more effective.

  4. PeasantParty says:

    ‘This memorandum memorializes advice’

    I have a few memos that can be used as memorials too!

    Here’s one:

    TO: Office of OLC

    RE: Military Operations in Libya

    TREASON!

    Usurption of US Laws and Constitution

    Can be memoralized in stone.

  5. hopeful says:

    And then this from the FBI. They just happened to lose the Tapes in the FBI’s plot to blow up downtown Portland, but they just happen to have extensive notes of the conversation that took place, which match exactly the recollection of all the agents involved. so convenient. Who wouldn’t trust the FBI to tell the truth of what was really recorded after the CIA fiasco? A big investigation and the FBI only had one deveice taping the most crucial piece of eveidence they claim to have, or had.

    Is it just me or is it crazy to think that the FBI just made up this bombing soley for the purpose of making Portland join the Joint Terrorism Task Force. Would they go as far as to actually blow something up?

    Here is the link to the Oregonian this morning.
    Oregonian

    • mzchief says:

      Portland JTTF City Hall Protest 3-10-2011” (video)

      Is Portland officially back in the JTTF? I’d love a link to an official statement if you have it.

      Here’s a compelling statement from “JTTF: Still Not Good for Portland” (Mar. 18, 2011):

      Sixty years ago in the name of security, Japanese Americans were subjected to curfews, search, restrictions and finally incarceration without just cause, as a frightened public encouraged the targeted enforcement. Japanese Americans spoke out for 40 years until the nation finally recognized the discrimination and acknowledged the unlawful violation of the civil rights of Japanese Americans. Five years ago, Portland JACL spoke out in support of the city’s decision to disengage from the JTTF because we were concerned for the civil rights of Portland residents and suspicious of the powers granted by the Patriot Act. Japanese Americans understand what can happen when FBI enforcement in the name of security is allowed to operate without public oversight.

      The concerns about the JTTF we expressed before the City Council in 2005 remain true today. Although administrations have changed, the FBI has remained the same. Indeed, the documented abuses across the country by the FBI, especially through JTTFs, have only increased in the past few years. The FBI has placed informants in mosques and in other peaceful organizations around the country, collecting information on attendees and violating their First Amendment rights. Certainly we have seen examples of these FBI practices here in Portland.

    • Teddy Partridge says:

      I am pretty sure PDX is still debating whether to re-join the Joint Terror Task Force. The Mayor’s office just told me that there has been no decision, none is scheduled, and there will be another hearing about the issue but it hasn’t been scheduled either. It’s unclear whether there will be an opportunity for public testimony (again) at that hearing, since it’s not yet scheduled.

    • dagoril says:

      Maybe we’ll find those missing Tapes on that computer from Waukesha, Wisonsin, along with all of those found votes for Prosser!

  6. JTMinIA says:

    I note how this memo says “We also advised that prior congressional approval was not constitutionally required to use military force…” and not that prior approval is not legally required. Maybe all memos are written this way – in terms of the Constitution, rather than all laws – but it jumped out at me since I’m 99% convinced that Obama violated the War Powers Resolution.

    • bmaz says:

      They couldn’t say that because the real fallback is that the War Powers Resolution is unconstitutional in the face of Article II power. Formally discussing the WPR in the terms you are suggesting would have lent credence to it they might later regret.

  7. PeasantParty says:

    From Ms Krass’s OLC Memo:

    The President also indicated that “[w]e will seek a rapid, but responsible, transition of operations to coalition, regional, or international organizations that are postured to continue activities as may be necessary to realize the objectives of U.N. Security Council Resolutions 1970 and 1973.” Id. As authority for the military operations in Libya, President Obama invoked his “constitutional authority to conduct U.S. foreign relations” and his authority “as Commander in Chief and Chief Executive.” Id.

    Before the initiation of military operations in Libya, White House and other executive branch officials conducted multiple meetings and briefings on Libya with members of Congress and testified on the Administration’s policy at congressional hearings. See Press Release, Office of the Press Secretary, Press Gaggle by Press Secretary Jay Carney (Mar. 24, 2011), available at http://www.whitehouse.gov/the-press-office/2011/03/24/press-gaggle-press-secretary-jaycarney-3242011. President Obama invited Republican and Democratic leaders of Congress to the White House for consultation on March 18, 2011 before launching United States military operations, see id., and personally briefed members of Congress on the ongoing operations on March 25, 2011. Press Release, Office of the Press Secretary, Readout of the President’s Meeting with Members of Congress on Libya (Mar. 25, 2011), available at http://www.whitehouse.gov/the-press-office/2011/03/25/readout-presidents-meeting-memberscongress-libya. Senior executive branch officials are continuing to brief Senators and members of Congress on U.S. operations and events in Libya as they develop

    Here is where she uses her idea of Presidential authority to drop bombs.

    “As authority for the military operations in Libya, President Obama invoked his “constitutional authority to conduct U.S. foreign relations” and his authority “as Commander in Chief and Chief Executive.” Id.”

    Foreign Relations! Did you know you can classify dropping bombs as such a friendly sounding term?

  8. JTMinIA says:

    I’m going to ask Rep. Ryan to write a bill that adds a statute of limitations to claims of non-Constitutionality. He seems to get off on this sort of thing.

  9. mzchief says:

    Citation with hypertext link: “JTTF: Still Not Good For Portland” (Mar. 18, 2011)

    Also, “Not Exactly Paradise: Japanese American Internment Camps” (Oregon State Archives with photos)

    The memory of these atrocities are very much alive among the survivors and their children and no one has bothered to ask the surviving American Indian community what they think as they are still on modern day interment camps with nuclear facilities on them.

    Yakama Nation cultural leader Russell Jim talks about the Hanford Nuclear Reservation in south-central Washington and the social, cultural, economic, and political issues that surround it.

    There’s more beyond the above excerpt in “Nuclear Attack on the Yakama Culture” (Feb 6, 2010) including a video of Russell Jim speaking.

  10. rosalind says:

    totally and completely OT:

    NFL star, Peyton Manning, has become a father for the first time after his wife, Ashley Manning, gave birth to twins last week.

    The Indianapolis Colts quarterback welcomed a son, Marshall Williams Manning, and a daughter, Mosley Thompson Manning, into the world on March 31.

    link

  11. hotdog says:

    I thought the new mantra is just “It’s better to ask for forgiveness than permission say fuck you, we don’t need no stinking permission, and we crap all over your forgiveness.”

  12. MadDog says:

    EW, as you’ve indicated, you intend to post further on this “No Boots on the Ground = Not War” OLC opinion and I look forward to more.

    Food for thought – Consider a future presidential action such as US airstrikes targeted against Iran’s nuclear facilities.

    Yes, it doesn’t seem likely right at the moment, by either Israel or the US, given the ongoing democracy-birthing tumult in the Middle East.

    But look further in time to when there seems to be a return to a semblance of ME stability. That may be no further than a year or two from now.

    In any case, methinks this OLC opinion has an extremely important precedential nature about it that must be brought to public light.

    Namely that in the legal opinion of this and future administrations, “No Boots on the Ground = Not War”!

    And consider too, a future administration (perhaps even Obama’s second term) when the Executive Branch is held by a different party than that of Congress.

    With this “No Boots on the Ground = Not War” OLC opinion standing in precedential obstruction athwart perceived singular Congressional prerogatives, a future administration may undertake something such as US airstrikes targeted against Iran’s nuclear facilities and for which, Congressional approval is neither sought nor obtained.

    Given the historical deference given to the Executive branch by the Judicial branch in matters of Foreign and National Security policy and with this OLC opinion in place, I, for one, cannot envision judical rulings saying in matters of “No Boots on the Ground = Not War”, that Congress holds sway.

    • MadDog says:

      Another Executive branch action easily covered by this “No Boots on the Ground = Not War” OLC opinion is the obvious US transnational killer drone ops, and not just in Pakistan. Think worldwide!

      Oh, and a suggested title for this wee bit of legal legerdemain: The Obama Precedent.

  13. harpie says:

    The author of the OLC memo “Authority to Use Military Force in Libya” is Carolyn D. Krass, Principal Deputy Assistant Attorney General.

    In 2007, she was awarded the Attorney General’s Award for Exceptional Service

    http://www.justice.gov/opa/pr/2007/October/07_ag_787.html

    The Attorney General’s Award for Excellence in Furthering the Interests of U.S. National Security recognizes outstanding achievements and contributions towards protecting U.S. national security. From the Department’s Office of Legal Counsel, Caroline D. Krass, Senior Counsel, and John A. Eisenberg, Deputy Assistant Attorney General, are honored for their indispensable roles in helping to maintain our national security and promote the effectiveness of the Foreign Intelligence Surveillance Act. Ms. Krass and Mr. Eisenberg have worked tirelessly, providing counsel and advice related to electronic surveillance occurring as part of the President’s Terrorist Surveillance Program and related to the authority of the Foreign Intelligence Surveillance Court. In doing so, they both applied their unparalleled knowledge of intelligence law, the law of war and related public international law, national security law, and various aspects of the constitutional law of foreign relations.

    On February 8, 2011, Krass was appointed Principal Deputy Assistant Attorney General-head of Office of Legal Counsel.

    http://www.justice.gov/olc/meet-olc.html

    Caroline Diane Krass was appointed Principal Deputy Assistant Attorney General on February 8, 2011.

    Ms. Krass recently served as Special Counsel to the President for National Security Affairs and Deputy Legal Adviser at the National Security Council from January 2009 through December 2010. Before that, she served for nine years in the Office of Legal Counsel, first as an Attorney Adviser and later as Senior Counsel. She served as a Special Assistant U.S. Attorney in the National Security Section of the United States Attorney’s Office for the District of Columbia from 2007 to 2008 and as Deputy Legal Adviser at the National Security Council from 1999-2000. Earlier in her career, she served as the Special Assistant to the General Counsel at the Department of the Treasury and as an Attorney Adviser at the Department of State. She clerked for Judge Patricia M. Wald on the U.S. Court of Appeals for the D.C. Circuit.

    Ms. Krass received her bachelor’s degree from Stanford University in 1989 and her JD from Yale Law School in 1993.

  14. MadDog says:

    OT – The ACLU has filed a brief regarding the latest Yoo and Goldsmith OLC opinions for more disclosure.

    In addition, I would note that the ACLU makes many of the very same arguments that EW and others made here regarding improper classification of purely legal and descriptive discussions of things like the Patriot Act.

    The 6 page PDF is here.

  15. harpie says:

    GG writes a little about it here [promises more to come]:

    America’s two party system; Glenn Greenwald; 4/8/11

    […] The OLC in essence argued that “the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad, even without prior specific congressional approval”; that this authority “derives from the President’s ‘unique responsibility,’ as Commander in Chief and Chief Executive, for ‘foreign and military affairs,’ as well as national security”; and that — despite all appearances — what is happening in Libya is not a “war” as the Constitution uses that term when assigning the right to Congress (not the president) to declare wars (the OLC emphasized the limited nature of the intervention, though a U.S. General yesterday suggested the U.S. may consider deploying ground troops). […]

    He links to Charlie Savage:

    Justice Memo Upholds Libya Strikes; Charlie Savage; NYT; 4/7/11

    Savage quotes Jack Goldsmith in:

    Office of Legal Counsel Opinion on Libya Intervention; Jack Goldsmith; 4/7/11

    Also on the Lawfare Blog:

    A Point-by-Point Summary of OLC’s Libya Memo; Robert Chesney; 4/7/11

    Further to Jack’s post summarizing the OLC opinion on Libya, here is a point-by-point summary of the document’s legal analysis (I agree very much with Jack’s take on the implications of all this): […]

    …and

    Libya, the War Powers Resolution, and Whether Reversion to a Support Role Counts as “Terminating” U.S. Involvement in Hostilities; Robert Chesney; 4/8/11

    [See bmaz @2]

  16. harpie says:

    From The Constitution Project [with internal links]:

    As members of TCP’s [The Constitution Project] War Powers Committee and also as former Members of Congress, Mickey Edwards (R-OK) and David Skaggs (D-CO), along with Committee member and renowned war powers expert Louis Fisher, provided reporters with the context for the national debate over the U.S. use of military power in Libya without congressional authorization. In stories in the Wall Street Journal, Seattle Times, NPR, ABC-TV and other media outlets, our experts expressed alarm over the decision to engage in such action without congressional approval.

    In a Los Angeles Times story, TCP Senior Counsel Sharon Bradford Franklin asserted, “The use of force abroad needs to be authorized by Congress.” The role of the three branches of government was examined in the seminal TCP report, Deciding to Use Force Abroad: War Powers in a System of Check and Balances.

    In 2007, Louis Fisher testified before the Senate Committee on the Judiciary to provide the historical context for congressional authority to end wars — including the war in Iraq.

    Here’s a link to their Media Advisory:

    Here’s a link to their Library.

  17. homeroid says:

    “Creative zest” that and a simple icon would make a great tee-shirt. I am still chuckling.

  18. Gitcheegumee says:

    Special Forces scandal as officers are held ‘for trying to leak secrets’ |
    April 9, 2011

    Source: UK Daily Mail

    Two senior Special Forces officers suspected of leaking details of highly sensitive covert operations have been arrested under the Official Secrets Act, the Daily Mail can reveal.

    The unprecedented arrests came as members of the SAS and SBS were deployed in Libya in preparation for airstrikes and to liaise with rebels and identify stranded British oil workers for rescue.It was unclear last night what the officers are suspected of leaking, but it is understood it involves attempts to pass it to a major broadcaster.

    The investigation is focused primarily on information relating to the war in Afghanistan against the Taliban and Al Qaeda. But it is also looking at secret information the men had access to about Libya and other countries where Special Forces have been operating.

    Such is the sensitivity of the case that the Cabinet Office, the Ministry of Defence and the Home Office are being regularly briefed on its progress by anti-terrorist officers. Whitehall officials last night described the allegations against the men, who would have had a high security clearance, as ‘extremely serious’.

  19. perris says:

    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?

    it’s the cheney template

  20. lokywoky says:

    Could someone tell me just who is actually in the OLC now? Last time I heard – not that I’ve been paying extra-special attention – no one that has been nominated for that office has ever been confirmed.

    • harpie says:

      I’m not able to find a comprehensive list of names. At www. Justice.gov they have a contact list, but only by department/agency.

      I’ve been thinking about Caroline D. Krass, who wrote the Libya memo [pdf].

      From reading the info in my comment @35, it seems that Krass worked at OLC for the entire two terms of the GWB administration. And now, I think, she’s head of OLC. If she’s not exactly the head, she’s up there in the department…high enough to write/sign the Libya memo.

      It might just be me, but Jack Goldsmith, Head of OLC during some of the GWB years, [Krass’s boss?] seems to be pretty pleased with her Libya memo:

      Office of Legal Counsel Opinion on Libya Intervention; Jack Goldsmith; 4/7/11

      …and no wonder, as he says in the link:

      The analysis relies on a wide array of arguments and executive branch precedents (many of which are collected here).

      “Here” links to a post Goldsmith wrote at his own blog on March 7, 2011:

      Intervening in Libya – Domestic Law Authority; Jack Goldsmith; 3/7/11

      Doesn’t Krass have the position that Dawn Johnsen was supposed to occupy?

      Arggh.

  21. TarheelDem says:

    a memo written after the fact authorizes precisely the engagement that Obama ultimately used

    So it’s the OLC now who authorizes the use of force? That’s mighty strange. I thought the President had clear authority to act in response to UN Security Council resolutions without going to Congress. And I thought the precedent for this was Harry Truman’s engagement in Korea.

    Looks like a CYA argument to Republicans in Congress to me.

    CAROLINE D. KRASS
    Principal Deputy Assistant Attorney General

    seems to be who’s minding the store these days.

    Caroline D. Krass, named to be Associate Counsel to the President for National Security Affairs, was previously senior counsel in the Office of Legal Counsel at the Justice Department. Krass contributed $3300 to Obama for America (as well as $2280 to Hillary Clinton’s campaign).

    I would say that was $5580 well invested.

    • spanishinquisition says:

      “I thought the President had clear authority to act in response to UN Security Council resolutions without going to Congress”

      No, look at the first Iraq war where Bush I went to Congress for authorization after getting a UN resolution:
      http://en.wikipedia.org/wiki/Authorization_for_Use_of_Military_Force_Against_Iraq_Resolution_of_1991

      Oh and in the Bush II admin she got an award for her FISA work:
      The Attorney General’s Award for Excellence in Furthering the Interests of U.S. National Security recognizes outstanding achievements and contributions towards protecting U.S. national security. From the Department’s Office of Legal Counsel, Caroline D. Krass, Senior Counsel, and John A. Eisenberg, Deputy Assistant Attorney General, are honored for their indispensable roles in helping to maintain our national security and promote the effectiveness of the Foreign Intelligence Surveillance Act. Ms. Krass and Mr. Eisenberg have worked tirelessly, providing counsel and advice related to electronic surveillance occurring as part of the President’s Terrorist Surveillance Program and related to the authority of the Foreign Intelligence Surveillance Court. In doing so, they both applied their unparalleled knowledge of intelligence law, the law of war and related public international law, national security law, and various aspects of the constitutional law of foreign relations.
      http://www.justice.gov/usao/nye/pr/2007/2007oct02b.html

    • harpie says:

      With regard to:

      “I thought the President had clear authority to act in response to UN Security Council resolutions without going to Congress”.

      Here is Louis Fisher on War Powers in general.

      Here’s his Bio.

      Specific to this question:

      Sidestepping Congress: Presidents Acting Under the UN and NATO [pdf]; Louis Fisher; 1997

      …and why many believe what the President has this power:

      The Law: Scholarly Support for Presidential Wars [pdf]; Louis Fisher; 2005

      For the past half-century, political scientists and historians have given much intellectual support to the growth of presidential power. They have imbued the presidency with magical qualities of expertise and good intentions, motivated by the “national interest” rather than the local and parochial ambitions that supposedly drive members of Congress. In this decision to concentrate power in the president, scholars gave short shrift to legal boundaries and constitutional principles, including checks and balances and separation of powers. Supported by the academic community, presidents now regularly claim that the Constitution allows them to wage war against other countries without receiving either a declaration or authorization from Congress.

      This is from the War Powers Committee at The Constitution Project:

      Deciding to Use Force Abroad: War Powers in a System of Checks and Balances [pdf]; An Initiative of The Constitution Project; 2005

      4. The Role of International Organization and International Law in War Powers

      International Authorization As a Substitute? – The Supremacy Clause of the Constitution asserts that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land….”60 The United Nations Charter is a treaty to which the United States is a party. Although no administration since the Truman administration has formally relied on treaty authority to use force abroad without advance congressional authorization,61 some defenders of uses of force have asserted that an authorization from the United Nations Security Council is a constitutional substitute for congressional authorization because the President has the constitutional authority to execute a treaty obligation as part of the law of the land.62 Others have even implied that authorization by regional collective defense organizations such as the North AtlanticTreaty Organization can operate with like effect.

      These claims are wrong [emphasis added]. United Nations Security Council or NATO approval of the use of force by the United States is not a constitutional substitute for congressional approval. That a use of force is lawful under international law does not make it constitutional. […]

      Here are the bios of the members of that committee.