The U.S. invasion of Libya without authorization from (or even much consultation with) Congress has caused many people to note Barack Obama’s 2007 statement that “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.” This got me wondering about Harold Koh, the Legal Advisor to the State Department. Before assuming the job at State-L, one of the defining ideas of Koh’s two decades of scholarship and amicus litigation was, as he wrote in the 1990 brief in Dellums v. Bush that he took a lead on:
the structure and history of the Constitution . . . require that the President meaningfully consult with Congress and receive its affirmative authorization – not merely present it with faits accomplis – before engaging in war. . . . Congress must manifest its genuine approval through formal action, not legislative silence, stray remarks of individual Members, or collateral legislative activity that the President or a court might construe to constitute ‘acquiescence’ in executive acts.
Dellums was a challenge to the 1991 Iraq war, before the first President Bush sought and received congressional authorization. Koh made essentially the same argument in the context of the proposed 1994 intervention in Haiti without congressional authorization, which, like today’s Libya intervention, was authorized by the United Nations Security Council and premised in part on humanitarian protection. See Appendix, American Journal of International Law, 89 Am. J. Int'l L. 127 (1995) (reproducing letter to President Clinton from Koh and nine other law professors). Koh also disagreed, point by point, with OLC head Walter Dellinger’s letter opinion in support of President Clinton’s unilateral intervention in Haiti. Id. As a scholar, Koh wrote an influential book on the constitutional perils of presidential war unilateralism, and many articles as well. As his Yale colleague Bruce Ackerman once wrote, “Koh’s work represents the most thoughtful effort to restore Congress to its rightful role as a check on presidential power in foreign affairs.”
All of this makes one wonder how Koh advised his client, Secretary of State Clinton, when she urged the President to intervene in Libya.
He almost certainly advised her that she needed a U.N. Security Council Resolution to satisfy international law. But if he was true to his prior scholarly and advocacy views, he would have also advised her that the government would be acting unconstitutionally if it attacked Libya without congressional authorization. Perhaps this is what he did advise her. But maybe he instead acquiesced in the unilateral presidential use of force, possibly in reliance on an opinion from the Office of Legal Counsel that likely would have relied on some of the executive branch precedents outlined here.
Some things Koh said in his 2010 speech before the ASIL might suggest that he took the latter course. There, he stated:
[T]he making of U.S. foreign policy is infinitely harder than it looks from the ivory tower. . . . In this maze of bureaucratic politics, you are only one lawyer, and there is only so much that any one person can do. Collective government decision-making creates enormous coordination problems. We in the Legal Adviser’s Office are not the only lawyers in government. . . . So unlike academics, who are accustomed to being individualists, in government you are necessarily part of a team. One obvious corollary to this is that as one government lawyer, your views and the views of your client are not the only views that matter.
Koh then quoted Duke Law Professor and former OLC head Walter Dellinger, who said:
[U]nlike an academic lawyer, an executive branch attorney may have an obligation to work within a tradition of reasoned, executive branch precedent, memorialized in formal written opinions. Lawyers in the executive branch have thought and written for decades about the President’s legal authority… When lawyers who are now [in my office] begin to research an issue, they are not expected to turn to what I might have written or said in a floor discussion at a law professors’ convention. They are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch’s legal positions.
Koh added that “government lawyers should begin with a presumption of stare decisis – that an existing interpretation of the Executive Branch should stand – unless after careful review, a considered reexamination of the text, structure, legislative or negotiating history, purpose and practice under the treaty or statute firmly convinces us that a change to the prior interpretation is warranted.” He might also have included another important sentence from Dellinger’s Miami Law Review article about the lawyer’s role: “there are powerful and legitimate institutional reasons why one’s views might properly differ” when one sits as a government lawyer rather than an academic.