A couple of weeks ago, as Ben noted, Trevor Morrison posted an article addressing the Libya-hostilities-OLC debate. An expanded and updated version of that paper is now available here at Harvard Law Review Forum, and it is well worth a read. In addition to more deeply engaging his ongoing debate with Bruce Ackerman, the updated paper also responds to an intervention in the debate from Eric Posner and Adrian Vermeule. Meanwhile, Dawn Johnsen joins the discussion w
Latest in War Powers Resolution: Libya
Marty Lederman offers this analysis over at Balkinization of two critical amendments proposed by Senator Richard Lugar and adopted by the Senate Foreign Relations Committee yesterday.
Lederman points out that the first of Lugar's amendments would legally restrict the use of ground forces, which goes further than the language in the original Kerry-McCain resolution.
Eric Posner and Adrian Vermeule have an essay in Slate that argues that it was appropriate for President Obama to ignore OLC’s advice related to the War Powers Resolution. The thrust of their argument, which contrasts sharply with Trevor Morrison’s recent argument, is that “[t]here is no reason that the president — the sole officer of government constitutionally required to ‘take care that the laws be faithfully executed’ — should be bound, even presumptively, by the legal views of those who ar
Koh's Written Testimony on the WPR: Arguably Defeating the Section 8(c) Argument, but Struggling with the "Armed Conflict=Hostilities" Argument
Harold Koh's written testimony in connection with today's SFRC hearing on the WPR and Libya is now available.
For the benefit of those who could not watch the SFRC hearing this morning on Libya and the WPR, here are highlights from the oral testimony from State Department Legal Advisor Harold Koh (the written testimony is not yet publicly available, but we will post it shortly).
Koh's opening statement:
The word "hostilities," which is the trigger for the 60-day clock, is an "ambiguous term of art" that was not defined in the WPR, and the legislative history on the point is indeterminate. The word is not to be construed just by reference to dictionaries, but in no small pa
The following is a guest post from Peter Margulies (Roger Williams Law), reporting highlights from the Naval War College's International Law Conference 2011 ("Non-International Armed Conflict in the 21st Century"). Note in particular the exchange relating to whether U.S.
Well, this is going to be interesting, and probably more than a little tense. State Department Legal Advisor Harold Koh will testify tomorrow morning, at 10 eastern (in theory), before the Senate Foreign Relations Committee. Watch it here. And be sure to prepare by reading Josh Rogin's handy account of the status of the Kerry/McCain Resolution authorizing operations i
First, my thanks to Ben, Jack, and Bobby for permitting me to become an affiliated blogger on this terrific site.
We are likely soon to get a test of how seriously Congress takes all of the War Powers Resolution (WPR). In particular, is Congress prepared to insist that the 60-day clock provision -- thought to be the key to the WPR when enacted -- be enforced?
Columbia law professor Trevor Morrison has a new essay, posted at SSRN, entitled "Libya, 'Hostilities,' the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation." Among other things, the paper continues Morrison's ongoing exchange with Bruce Ackerman (see here and here) regarding the functioning of OLC. I asked Trevor to condense the argument for posting Lawfare.
Last Friday I speculated on why Legal Advisor Harold Koh, a leading academic critic of presidential war unilateralism, supported President Obama’s constitutional arguments for the Libya intervention, as well as his restrictive interpretation of the War Powers Resolution. At about the time I posted those thoughts, Koh was giving a speech at the American Constitut