June 20, 2011

WAR POWERS UPDATE: Obama, Bush, and the OLC:

During the Bush Administration, the White House did not seek Congressional approval of some anti-terror initiatives because some within the Administration — most notably, Dick Cheney — wished to establish the principle that the Executive could act unilaterally to address national security concerns. This approach was unwise, but it is easy to understand. But what is the explanation here? It is hard to see what larger legal principle the Administration is trying to vindicate. . . .

One possibility, suggested in the comments, is the principle that approval by a multinational entity (the UN, NATO, etc.) should be sufficient to authorize U.S. military action. One data point in support of this theory is the line of division within the Administration: attorneys at Justice and Defense versus Koh at State.

It’s not clear to me that this principle is in accord with the Constitution, or with U.S. national interest. Which isn’t to say that it’s not the one they’re championing.

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