The Charlie-Savage-Used-to-Be-Richard-Lugar’s-Intern SFRC Libya Hearing

Boy has Charlie Savage caused a headache for Barack Obama and Harold Koh.

The Senate Foreign Relations Committee had a hearing to grill Koh today, in part, because of Savage’s report that Obama overrode OLC, DOJ, and DOD lawyers in deciding that we are not engaged in “hostilities” with Libya and therefore he can blow off the requirements of the War Powers Resolution. Granted, the Obama Administration limited the headache by having just Koh, who sided with Obama in the dispute, and not those lawyers who were overridden, appear at the hearing. Committee Chair John Kerry admitted they had been invited, but declined to attend.

The issue of how Obama came to claim Libya did not involve “hostilities,” by itself, had Koh speaking in circles worthy of his former student, John Yoo.

But what really made things difficult was Savage’s 2007 report on what candidate Barack Obama believed about a President’s war powers. In response to Savage’s question about whether or not the President could unilaterally bomb Iran, the constitutional professor presidential candidate responded,

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Richard Lugar–who by partnering with Senator Obama on a key foreign relations law gave him some credibility in the area–started the hearing by citing both Savage’s article citing the wisdom of candidate Obama and the one depicting President Obama overriding key lawyers on this issue.

It was about that point of the hearing where Charlie Savage revealed, via Twitter, that 15 years ago he served as an intern in Lugar’s office.

When Jim Risch raised the same quote from candidate Obama (Savage said nothing about interning for Risch), the lawyer now sanctioning Obama’s curious definition of hostilities said that candidate Obama’s 2007 stance on presidential war powers was legally incorrect.

So we’ve learned today that 2007 Harold Koh didn’t agree with what 2007 Charlie Savage reported 2007 Barack Obama believed about the law. But in 2011, Savage’s report made clear, 2011 Koh is the key administration lawyer who agrees with 2011 Obama’s views on the law.

25 replies
  1. phred says:

    No doubt Koh will be warmly welcomed back into the arms of academia, just as his BushCo predecessors were, when his WH tour of duty concludes. It’s a pity that logical consistency and clarity of thought are no longer prerequisites for legal “scholars”.

  2. bmaz says:

    If continued bombing and killing of the citizens and military of a foreign country, in their own country, is not a “hostility”, then what is?

    • BoxTurtle says:

      Unh, trying to deliver relief supplies to Gaza? *rimshot*

      It doesn’t matter what it’s called, if the votes aren’t there to impeach then it is de facto legal for Obama to do it.

      Boxturtle (And the gavel decends and it’s lunchtime)

      • bobschacht says:

        I think a continuing thread on the cynicism about Obama and the Constitution does not acknowledge that the Constitution and the Bill of Rights, even though they are the “law of the land,” in fact represent a Vision of government. Legal practice often falls short of this vision, and it is the job of the Supremes to conform practice to vision, but they, too, are corruptible humans.

        I am reminded of the quote attributed to Ben Franklin, when asked what kind of government we have, and he responded, “A Republic, if you can keep it.” What he was talking about was the conformity (or lack thereof) between Praxis and The Vision. And all three branches of the Government, Congress, the Courts, and the Executive, have mutual responsibilities in “keeping” the Republic. And all three are failing.

        Bob in AZ

  3. klynn says:

    This blog archive is worth a read.

    Congress, meanwhile, has the power affirmatively to direct the termination of US participation in the Libya operation, now or at some date certain in the future (as Jack Goldsmith reminds us was done with Lebanon and Somalia). But the WPR, and the putative failure to comply with it, is essentially irrelevant in that context. Or so one would hope.

    -P. Spiro

    (my bold)

    • klynn says:

      Thanks for the links harpie.

      Part of my frustration today is that Fisher and Spiro (and Koh for that matter) have gone before congressional committees on WPR so many times that there should not have been need by this point to have another hearing. There is ample documentation about what congressional moves would allow checks and balances. You add in there Grimmet’s 30 year study for Congress and I get more frustrated.

    • harpie says:

      Kerry probably arranged things so that Fisher’s testimony would only be on paper…it’s much easier to ignore that way.

      It was so convenient, too, that only Koh could come to the party, and not Krass and Johnson [did I get the names right?]

      • harpie says:

        For example:

        […] In a May 20 letter to Congress [I think this is the same letter Kerry quoted from in his opening statement], President Obama spoke again about “authorization by the United Nations Security Council.” He said that congressional action supporting the military action in Libya “would underline the U.S. commitment to this remarkable international effort.” Moreover, a resolution by Congress “is also important in the context of our constitutional framework, as it would demonstrate a unity of purpose among the political branches on this important national security matter. It has always been my view that it is better to take military action, even in limited actions such as this, with Congressional engagement, consultation, and support.” If that has always been his view, it was his obligation to come to Congress in February to seek legislative authorization. […]

  4. harpie says:

    What Fisher thinks about Kerry’s Resolution [Text @link]:

    Senate Joint Resolution 20, introduced on June 21, is designed to authorize the use of U.S. armed force in Libya. In two places the resolution uses the word “mandate.” Security Council Resolution 1970 “mandates international economic sanctions and an arms embargo.” Security Council Resolution 1973 “mandates ‘all necessary measures’ to protect civilians in Libya, implement a ‘no-fly zone’, and enforce an arms embargo against the Qaddafi regime.” The Security Council cannot mandate, order, or command the United States. Under the U.S. Constitution, mandates come from laws enacted by Congress.

  5. powwow says:

    The Senate Foreign Relations Committee had a hearing to grill Koh today…

    I beg to differ…: The Senate Foreign Relations Committee held a hearing today…to be able to say that “they held a hearing today” in future.

    What a sickening display this hearing was, on so many levels… Mostly because of Obama sycophants State Department Legal Advisor Harold Koh and Committee Chairman John Kerry, aided by the complete absence from the hearing (at least throughout the hour-and-a-half of questioning the committee engaged in) of ten Foreign Relations Committee Senators (out of a total of nineteen committee members), despite its focus on the vital, topical question of the lawful separation – or, as Kerry would have it, the unlawful concentration in one man – of the nation’s war powers. [Yet every Democratic Senator found time last Thursday to attend a private meeting with (and presumably to get its marching orders from) “chief executives from three successful corporations,” according to Harry Reid yesterday afternoon.]

    Absent from both this morning’s hearing with the State Department Legal Adviser (Panel One), and from the brief opening statements (at the last minute no time for questions was permitted by John Kerry) of the two non-administration WPR witnesses (Louis Fisher & Peter Spiro on Panel Two), were:


    Barbara Boxer
    Robert Menendez
    Benjamin L. Cardin
    Richard J. Durbin
    Tom Udall



    Marco Rubio
    James M. Inhofe
    Jim DeMint
    Johnny Isakson
    John Barrasso

    A couple of points that drove home the appalling nature of this hearing for me:

    1. The 5/20/11 Obama letter that John Kerry cited – while trying to cover Obama’s (and Koh’s) ass after Senator Corker had made his responsible and valuable points – was sent on the 60th day of the “60-day” WPR window (as Charlie Savage rightly tweeted). That letter, moreover, only welcomed the “support” of the Congress/Senate (“support,” “supports,” “supporting”) for Obama’s unilateral attacks on Libya, as opposed to requesting Congressional “authorization.” Note that if bombing isn’t “hostilities” in the Koh/Obama world of redefinitions, we can be damn sure that welcoming Congressional “support” doesn’t mean, or equate to, requesting Congressional “authorization” – authorization that Obama has never requested or referenced in his written communications to Congress with regard to Libya. [And as witness Peter Spiro picked up on, Harold Koh was seemingly careful not to endorse the constitutionality of the War Powers Resolution, even as he said that the White House wasn’t contesting its constitutionality at this time. Again, an important, if carefully elided and concealed, difference.] Furthermore, the “bipartisan” Kerry/McCain resolution that the President references in his May 20 letter (indicating his “support” for that resolution, which was likely drafted with the heavy involvement of the White House) was clearly a reference to S. Res. 194. Crucially (as John Kerry, evidently with good reason, was quite confident listeners would overlook or fail to point out), S. Res. 194 was a non-binding “Sense of the Senate” Resolution, that was not designed for consideration by the House and was thus unable to formally or Constitutionally “authorize” the President’s Libyan attacks under the War Powers Resolution, contrary to Senator Kerry’s deceitful, unchallenged spin to the contrary. S. Res. 194 was the only such Kerry/McCain resolution existing at the time, and until replaced a week ago by their proposed binding Joint Resolution S.J. Res. 20 (which is up for consideration at a Foreign Relations Committee Business Meeting that was due to start at 2:30 p.m. this afternoon, which will apparently not be televised).

    2. Since late last Thursday, John Kerry knew – or damn well should have known – what the Senate floor schedule was going to be today, between 10:00 a.m. and 2:15 p.m. (while this committee hearing was scheduled to be underway). Because last Thursday the Senate unanimously adopted the second half of a Wednesday agreement to do nothing on the floor this morning except to hold two hours of pro forma debate in advance of 1-3 rollcall votes on DOJ nominations at noon, and to then recess (as usual) for the private, segregated luncheons the Parties interrupt the Senate’s work to hold every Tuesday (shortly after everyone’s returned from their long weekends), between 12:30 p.m. and 2:15 p.m. [There ended up being only one half-hour-long rollcall vote, followed by two speedy voice votes, before the Senate recess.] In short, there was no excuse for the way that the Senate Foreign Relations Committee chairman and members shabbily treated their two non-government witnesses today (including a witness who traveled from Philadelphia). Those witnesses (Louis Fisher and Peter Spiro) barely had time to quickly summarize their written testimony (in front of only three committee members – Kerry, Lugar and Shaheen) between noon and 12:15 p.m., before the hearing was indefinitely recessed “subject to the call of the chair,” without a single question being asked of their panel. [Through 3:00 p.m. this afternoon, there’s been no sign of a resumption of that hearing; instead, at about 3:10 p.m., the committee website began to replay the hearing. Have there been any other hearings since the President’s attacks on Libya began – in the Senate or the House – focused on the legal status of this conflict with non-administration witnesses??]

    Talk about pretending to go through the motions, just so that you can claim that you did, when the committee’s “Business Meeting” formally gets underway to rubberstamp Obama’s Unauthorized Non-war War.

    What disgraceful conduct by the Senate Foreign Relations Committee.

    It’s conduct that’s a continuation of the disgraceful conduct of the Senate as a whole – in relation to the solemn Congressional obligation to exercise the power to declare war for this nation – that was earlier evidenced by the Ten-Minute Libya Debate on April 5th, forced by a Rand Paul motion. Conduct which is further exposed by an important section of Louis Fisher’s written testimony today (thanks, harpie) regarding the early unanimous consent passage, on March 1 (the same day it was introduced), of the non-binding S. Res. 85 (which I referenced, while quoting Senator Sessions, in The Constitution, The War Powers Resolution, & Libya: Rand Paul Defends Congressional Authority, Carl Levin Cedes It) – which captures so well how Party leadership today is allowed by our Senators to unaccountably “operate” the Senate:

    There was no debate on S. Res. 85. There is no evidence of any Senator on the floor at that time other than Senator Schumer [on behalf of Majority Leader Reid] and the presiding officer. Schumer asked for unanimous consent to take up the resolution. No one objected, possibly because there was no one present to object. Senate “deliberation” took less than a minute. When one watches Senate action on CSPAN, consideration of the resolution began at 4:13:44 and ended at 4:14:19 – after 35 seconds. On March 30, Senator John Ensign objected that S. Res. 85 “received the same amount of consideration that a bill to name a post office has. This legislation was hotlined.”27 That is, Senate offices were notified by automated phone calls and e-mails of pending action on the resolution, often late in the evening when few Senators are present. According to some Senate aides, “almost no members knew about the no-fly zone language” that had been added to the resolution28 At 4:03 pm, through the hotlined procedure, Senate offices received S. Res. 85 with the no-fly zone provision but without flagging the significant change.29 Senator Mike Lee noted: “Clearly, the process was abused. You don’t use a hotline to bait and switch the country into a military conflict.”30 Senator Jeff Sessions remarked: “I am also not happy at the way some resolution was passed here that seemed to have authorized force in some way that nobody I know of in the Senate was aware that it was in the resolution when it passed.”31

    Louis Fisher, June 28, 2011

    • bmaz says:

      Well, okay; but you have to take lead ins like that from us with a grain of salt. Don’t know if you watch Twitter or not, or if you do whether you watch our feeds, but I flat out guarantee you that there was a skewering going on. Even Charlie, who has done some outstanding work here, that despite it being couched in the polite language of the paper of record, had to cause the Administration total fucking conniption fits, at one point got a “you got to be fucking kidding me” from me. Marcy was only slightly less polite on the coverage of the SFRC proceedings.

      Heh, come on, if you cannot count us as properly outraged and on your side, who can you?

      • powwow says:

        Harold Koh managed to skewer himself quite handily on his own, it seems to me – he needed very little assistance from Senators on that score (though the glaring lack of such “assisting” pressure and push-back from Senators is part of what I was referencing; and, yes, bravo to any and all tweets from emptywheel and other outsiders that pointed out in real-time how disgusting Koh’s rationalizations and sycophany were/are). Of course, obviously if Kerry hadn’t called Koh in front of the committee at all (to try to elevate Koh’s position, or whatever Kerry’s motive was), that public skewering wouldn’t have happened. Nevertheless, way too much of Koh’s dangerous, rationalizing rhetoric was allowed to remain hanging in the air, unanswered and unchallenged by the fawning, subservient creatures who pretend to be members of the Senate Foreign Relations Committee (while the subsequent witnesses were given no opportunity to rebut Koh’s claims, although Spiro appeared to be right behind Koh in the Suck-up-to-Executive-power department).

        So this was one casual (if that’s what it was) EW “lead-in” that I couldn’t overlook, or take with “a grain of salt,” given the gravity of the issue, and my profound disgust with what I’ve been witnessing in the Senate of late, topped-off by this hearing. If others saw it differently, so be it – we can agree to disagree, without choosing sides. I’m certainly glad that emptywheel took the time to watch the hearing and to post about it.

        At any rate, here’s the bottom line that today’s whole pseudo-hearing affair was obviously leading up to, from the get-go (and for which, this time, the committee seemed to have no trouble managing to collect all 19 Senators together for an off-camera vote, after the Senate Parties had finished their luncheon recesses):

        President Obama’s assertion that U.S. military engagement in the Libyan civil war did not amount to “hostilities” under the War Powers Act was soundly rejected today by the Senate Foreign Relations Committee.

        The committee adopted an amendment proposed by its Republican leader, Senator Richard G. Lugar, that repudiated the legal arguments made earlier in the day by State Department Legal Adviser Harold Koh. The amendment establishes that current U.S. military operations in Libya do constitute hostilities under the War Powers Resolution and are subject to that resolution’s provisions that require authorization by Congress.

        The committee then voted 14-5 in favor of a binding resolution giving Obama the authority to continue military engagement in the Libyan war. Lugar voted against the resolution, but supported his amendments and others that place restrictions on American involvement in the conflict.

        • bmaz says:

          Heh, yes, of course the Senate was duplicitous in that manner. It is what they do. And, I cannot speak for Marcy, but I understand what you are saying and the opening you took. Just wanted to point out for the uninitiated that (cause I think you know), opening provided or not, there was no joy in this Mudville over the dog and pony show.

          As I recall, I even suggested that Koh was so full of shit, and obviously contra to his life’s body of work, that seppuku ought be in order.

          Here is a hilarious nugget for you. When I suggested, nee proclaimed, the Obama Administration has not only never challenged the WPR, but point blankedly stated they do not challenge, the constitutionality of the WPR, Charlie Savage suggested, I think with a straight face, they may be actually operating under the “Constitutional avoidance theory”. Uh, no, I was having none of that.

        • powwow says:

          Marty Lederman at Balkinization (to whom I see, and note on edit, harpie has already helpfully linked @ 23) has an optimistic take on the as-amended Kerry/McCain Joint Resolution (S.J. Res. 20) passed by the Senate Foreign Relations Committee yesterday, with regard to the potential future impact of language in one of the adopted Lugar amendments:

          Perhaps of greater importance, the second adopted Lugar amendment would specifically provide that “United States military operations in Libya since April 4, 2011, which have included non-kinetic support to the NATO-led operations, including intelligence, logistical support, and search and rescue assistance, United States aircraft assisting in the suppression and destruction of air defenses in support of the no-fly zone, and precision strikes by unmanned aerial vehicles, constitute hostilities within the meaning of the War Powers Resolution, and may be carried out only under the conditions specified in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).”

          The effect of this second Lugar Amendment, were it to become law, would be not only to reflect a congressional disagreement with the President’s views on whether the Libya operations since April 4th have constituted “hostilities” for purposes of the War Powers Resolution, but also to establish going forward, as a matter of law, that those operations constituted “hostilities”– an interpretation of the WPR that would (unlike the Executive’s contrary reading) be binding in the future. Accordingly, not only would it stand as a legislative rebuke to the President’s construction of the statute, but in addition it would establish a legal precedent on the meaning of the term “hostilities” that the Executive would be compelled to take into account in assessing the application of the WPR 60-day clock for future military operations. In that respect, the Kerry/McCain resolution, with this Lugar Amendment, would be both an authorization of the current Libya operation, and a statutory constraint on the Executive — a rare congressional pushback that serves, as a practical matter, to “enforce” the WPR.

          [Lederman also praises the new head of the DOJ’s Office of Legal Counsel (OLC), Virginia Seitz (the Senate confirmed Seitz yesterday by voice vote along with a new Assistant Attorney General to head the DOJ’s National Security Division, and, by roll call vote, the recess-appointed Deputy Attorney General James Cole).]

        • bmaz says:

          Seitz appears to be a pretty admirable person and attorney, but she severely lacks the experience set appropriate for the job. And she is awfully chummy with the craven Chamber of Commerce for my tastes, although others may not see that as much of a disqualifying factor as I do.

  6. spanishinquisition says:

    I find what Koh said extremely troubling. He was asked if having a drone drop a nuke would be considered a hostility and he just laughed, but I haven’t heard him clearly define why a nuclear-armed drone wouldn’t fit his definition of non-hostility. Koh’s legal groundwork could very well set the table for causing WWIII or massive neo-colonialism…more neo-colonialism than we have now. Koh is basically giving Presidential carte blanche to the type of colonialism that used to be frowned up…if you’re opponent is so poorly armed compared to yourself, what you do to them doesn’t even count. Thinking about what the Europeans did in the New World and Africa against countries that weren’t as well armed by Koh’s definitions wouldn’t be consider “hostilities” since our cannons and guns made it very hard for those we shot at to fight back.

    • bmaz says:

      Without prattling on for 3,000 words, in short, yes. I think a large component of why Obama personally, and his Administration as a whole collectively, malignantly decided to go the way they have is based on not so much honest legal interpretation nor “fear of appearance of more war in the middle east”; but in determination to except the ever more prevalent remote drone killing modality of military projection available and outside of traditional scrutiny and constraint.

  7. harpie says:

    A Possible Compromise on Libya and War Powers; Marty Lederman; Balkinization; 6/29/11

    […]Even if the full Senate were to approve that authorization, it would not likely become law, because the House overwhelmingly rejected a virtually identical bill last Friday.

    But the Senate bill will not be identical to the one the House rejected, because just before voting on that resolution, the SFRC also approved two amendments thereto offered by Senator Lugar that just might be the key to a successful compromise. […]

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