Libya, “Hostilities,” the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation

The Obama Administration has faced substantial criticism for both the substance of, and the process leading to, its conclusion that U.S. military involvement in Libya does not constitute “hostilities for purposes of the War Powers Resolution. In this short essay, Professor Trevor Morrison focuses on the process question. Although press reports depict a highly anomalous decisionmaking process — especially as relates to the Justice Department’s Office of Legal Counsel (OLC) — it is not yet clear that those reports offer a completely accurate picture of what happened. Without offering a definitive diagnosis of what actually happened in this case, Professor Morrison discusses what an appropriate process would have been, and underscores the short- and long-run institutional costs to the White House of departing from that process. In the course of doing so, Professor Morrison continues his ongoing exchange with Professor Bruce Ackerman over legal interpretation in the executive branch