Imagine...

[IBCoupe]

Imagine that you had the ear of the Principal Deputy Assistant Attorney General of the Obama Administration on the night of Monday, April 25, 2011 at 6:30PM EST.

Welcome to my world. This is the lady that authored the memo providing the legal justification of U.S. actions in Libya, and she happens to be a former classmate of my Constitutional Law professor. He's arranged for a phone call between our class and her brain. He's asked us, as a class, to have some questions available for our teleconference, and he sent an email to me, individually, to ask for my specific participation.

Lest we think I'm turning to NICOpolitik for my homework assignment, I should let you know that I've already submitted three statutory questions regarding the actions in Libya, the War Powers Clause, the UN Charter and the authorizing federal statutes for the UN Charter. So now that I've done the bare minimum, it occurred to me that you guys might have an interest in asking a question, and not being law students in this particular class, you might not have the opportunity to ask them with a reasonable expectation of an answer.

So, is there anything you'd want to ask? I can't guarantee that I'll pass your questions along without overstepping my bounds as a student, but what I can do, I will.

I'll look forward to your responses!

[Cold_Zero]

Just tell her from me (Bud) that we should have done what the Germans did and kept out.
What are your questions that you are going to ask her?

[Cold_Zero]

I would assume and please correct me if I am wrong, that as a lawyer you may not always agree with what you are asked to represent but (as long as it doesnt bind your conscience) you do your job anyway. Can you confirm?

[IBCoupe]

That's similar to a question I asked, Bud. I'll show what I sent my professor:

The first question I have comes from my own investigations of the legal justification for President Obama's actions in Libya, and it's got to do with statutory meaning. Ms. Krass' memo appears to focus a lot on the “national interest” justification in the War Powers Resolution, but my research drew me towards the statutory justification.

I have a few questions about a potential justification by statute. Congress elaborated how the United States may use (and be limited from using) armed forces pursuant to UN actions in 22 U.S.C. § 287d.

The whole text of that section is as follows:

The President is authorized to negotiate a special agreement or
agreements with the Security Council which shall be subject to the
approval of the Congress by appropriate Act or joint resolution,
providing for the numbers and types of armed forces, their degree
of readiness and general location, and the nature of facilities and
assistance, including rights of passage, to be made available to
the Security Council on its call for the purpose of maintaining
international peace and security in accordance with article 43 of
said Charter. The President shall not be deemed to require the
authorization of the Congress to make available to the Security
Council on its call in order to take action under article 42 of
said Charter and pursuant to such special agreement or agreements
the armed forces, facilities, or assistance provided for therein:
Provided, That, except as authorized in section 287d-1 of this
title, nothing herein contained shall be construed as an
authorization to the President by the Congress to make available to
the Security Council for such purpose armed forces, facilities, or
assistance in addition to the forces, facilities, and assistance
provided for in such special agreement or agreements.

The proviso at the end of that section, emphasized by me, lies at the heart of my question. The statute draws a distinction between actions taken in accordance to a special agreement drawn up with another member state (Article 43), something that is subject to Congressional approval, and actions taken in accordance to a direct call by the UN Security Council (Article 42), which are not subject to Congressional approval. The proviso says, by my understanding of it, that the statute doesn't give the President authority to act under Article 42 in excess of an existing Article 43 agreement.

Question #1:
In the event that there isn't an Article 43 agreement at all, couldn't the President simply act in Libya in accordance with the UN Security Council Resolution 1973, 22 U.S.C. § 287d, and the War Powers Resolution without Congressional approval?

Question #1 without the statutory specifics:
Is there a statutory justification to be had that satisfies the requirements of the War Powers Resolution, as per 50 U.S.C. § 1541(c)(2)?

Question #2:
Would a statutory justification for the President's actions be more appealing from a political or legal perspective than the more “squishy” reasoning of a “national interest” approach?

Question #3:
I imagine that the work of the Office of the Attorney General bump into the political sphere of Washington, D.C. quite often. Do political forces drive your legal research in any way, or is it more the other way around?

I think my Question #3 aims for a similar issue as what you're driving at.