Michael Glennon’s Criticisms of OLC Libya Opinion

OLC’s Libya opinion cites its past opinions as though they were court cases.  They are not.  Its Libya opinion conveys an impression that the Office of Legal Counsel is an impartial, objective, independent arbiter of the Constitution.  It is not.  OLC’s strained effort to justify torture during the last Administration need not be recounted.  So far as I am aware, the Office has never published an opinion announcing the illegality of any use of force by the Executive (though it conveniently omits reference to its 1980 opinion upholding the constitutionality of the War Powers Resolution’s 60-day time limit.) One would not expect OLC to make the case against the President’s actions. Its opinion on Libya, like its other opinions, is an effort to put the best legal face on those actions. The President is entitled to no less.  But no one should mistake OLC’s advocacy as a disinterested evaluation of competing constitutional claims.  It is, in truth, not an opinion at all but a brief. Nor would one expect OLC to explain the stark contradictions between its position and the many earlier statements of top Administration officials.  The process has not yet become that politicized.  OLC insists that those officials are now concerned that the UN Security Council’s edicts do not turn out to be empty words.  It is fine to worry about the  United Nations’ credibility.  But the credibility of the United States’ own domestic legal system is also at stake.  Millions of people voted for “change we can believe in,” thinking that the election of 2008 meant an end to an era of extravagant claims of presidential power. The President, Vice President, Secretary of State and State Department Legal Adviser take an oath, after all, to support the United States Constitution, not the United Nations Charter. These officials bear a responsibility for maintaining the credibility of our system, which rests, in the end, upon the believability, reliability, and integrity of our highest constitutional officers. It’s not as though their earlier statements were made off-the-cuff, and it’s not as though these officials had no acquaintance with constitutional law. Their statements were deliberate, studied pronouncements by individuals schooled in the history and interpretation of the Constitution, with years of experience in the highest councils of government and legal education.  What credibility costs are borne by the United States when the declarations of such officials – measured pronouncements on the meaning of the most fundamental precepts set out in the Constitution – turn out to be empty words?