The New York Times reports on the process by which President Obama came to the Orwellian legal conclusion that our actions in Libya are not “hostilities,” and thus do not need Congress’ approval under the War Powers Resolution. As the Times dryly says, “A sticking point for some skeptics was whether any mission that included firing missiles from drone aircraft could be portrayed as not amounting to hostilities.”
The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.
In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.
It seems very likely that Obama knew what outcome he wanted, and rather than seek the most authoritative opinion, he picked the one that came to the conclusions he desired. As Jack Balkin points out, this is substantially similar to how Bush operated.
By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC’s function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC’s. If one is disturbed by Bush’s misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures.
Andrew Sullivan writes:
There’s no inherent Constitutional bar on the president making the final decision on legal matters. But the tradition of an independent legal entity at the Justice Department to provide objective analysis is designed to prevent the president cherry-picking legal decisions as he sees fit. From Bush to Obama, we have now seen conclusively that the presidency is out of control when it comes to war and peace. Given the obvious irregularities that brought the president to such a betrayal of a core campaign message, and his previous statements on presidential war-making power, we need this Congress to fight back.
The Congress needs to vote to end this war, illegally begun, illegally continued, and defended with a presidential hauteur more fitting a monarch than a president. If we cannot restrain or shame even Obama in the face of this individual act of war, how on earth will we ever prevent future presidents from doing more? If we do not stop this legally unaccountable war-making machine now, when will we?
I’d really like to vote for a President who respects the Constitution and isn’t overly willing to go to war. Unfortunately, that means giving my vote to a third party candidate, because it’s obvious that neither major party would ever nominate such a candidate.
After Bush finished wiping his butt with the Constitution, Obama responded, “You missed a spot.”
There is a rationale for the action in Libya that hangs on the UN Charter, which the US ratified in the 1940s. Because the action has (at least some) UN approval, US action under UN auspices is a treaty obligation, which Constitutionally trumps the War Powers Act, as treaties are the second-highest law of the land after the Constitution. So it’s not like Obama is completely out of bounds here, although I’d like to see him comply with the WPA just for drill.
That said, Congress can very easily shut down military action in Libya any time it wants, simply by clipping the purse strings. (This is why Gitmo is still open, btw — because Congress refused to fund its closure.) I misdoubt they won’t, however. Frankly, if Obama brought this to Congress, he’d win wide approval for it, because everyone sort of agrees that something has to be done about Qaddafi, even if nobody knows exactly what. Indeed, this is why I’d like to see Obama bring this to Congress, because it would force the GOP to put up or shut up, and my guess is on this issue they’d shut up, rather than vote to end military action against a Muslim dictator.
Of course, if Obama brought this to Congress, we’d also be risking widening the US involvement in the action from what is by all accounts a pretty restrained position to an all-out war. Which is one reason why I’m not as bent out of shape about this as I probably should be. Legally, it’s questionable, to say the least. But pragmatically, this probably keeps US involvement from getting out of control.
That headline could have been lifted directly from a posting of Free Republic.
I’ll admit that you could also see the same sentiments offered there in much less temperate language, echoing Kevin’s comment.
Good Lord – a thread where I agree with Amp, Jeff and Kevin. Put a gold star on the calendar.
The fact that we are obligated under a UN treaty to do such a thing does not prevent the President to at least attempt to comply with the War Powers Act and ignore the legislative branch. I dare say that if there is a conflict between the U.S. Congress and a U.N. treaty, the President owes allegiance to his or her co-equal branch of the government – Congress. I cannot imagine that any circumstance subsumes Congress to the Security Council. If Congress opposes a U.N. treaty then let the President can take the matter to the Supreme Court.
Of course, Congress can do the very same thing – essentially sue the President for acting outside his or her authority. I wonder if it will come to that in this case. In fact, depending on how far they want to go, the House can unilaterally act. They can impeach the President – I should think that defying the law to the extent of fighting a war without Congress’ consent is an impeachable offense. The Senate can refuse to convict, of course. But the House can impeach on it’s own, and ask President Clinton – who was impeached on a matter much less related to his official duties – what that does to your attempts to promote domestic and foreign policy.
You know, Wikipedia has a rule : Ignore All Rules.
“If a rule prevents you from improving or maintaining Wikipedia, ignore it.”
I don’t want to argue in favor of any specific measure took by Bush #2 or Obama, but I think it’s worth taking a glance at things from this perspective, too.
I think I would need to be convinced before agreeing that the rules that work for maintaining a free encyclopedia will also produce good government.
—Myca
Guess who said this:
I’m sure you’ll figure it out without even clicking on this link.
Hey, guess who said:
See if you can guess the name!
Hm. Unlike me you didn’t leave a link. Was that you?
Who were you talking to? Certainly not me. I’ve not endorsed “shoot now and never ask Congress” on the part of any President. “Unitary executive” is no phrase I’ve ever used (or endorse) and I haven’t got a clue WTF John Yoo even is.
It’s a fair warning, though, and one that I’ve offered myself on occasion – “Don’t grant power/authority to someone you favor if you don’t want an ideologically opposite replacement to have them.” Hey, I voted for Hillary in the Democratic primary (there weren’t any controversies on the GOP side, and in Illinois you can take any ballot you want). Her problem was that she was a lot more likely to tell various groups “No, I won’t promise you that, because we can’t do it.” I personally think she lost because the Democratic electorate decided that they’d vote for someone who would tell them what they wanted to hear instead of someone telling them things that were more reality-based.
Exactly none of which excuses President Obama from saying one thing to get elected and then doing pretty much the exact opposite once he got in. The gap between what he said he’d do and what he actually did/has done seems to be a lot larger with Obama than it was with Bush II.
RonF:
George W. Bush, 2000:
President Bush debates Governor Bush
I’m not sure that you can get a larger gap than that.
Yep.
Not you specifically. The conservative movement in general. Every bloodthirsty jerk and credulous fool who supported the invasion of Iraq and refused (and still refuses) to admit that we got into it because of deliberate, calculated lies and manipulation. Every conservative who supported warrantless wiretapping or torture. Every person who’s argued that Bush shouldn’t be charged with war crimes. Thomas Friedman and his, “Suck. On. This.”
Because, like I said, I’ve been arguing against unrestrained executive power for quite a while now. But if you belong to that group, you’ve been arguing for the president to do whatever the hell he wants, because he was your guy, and that’s part of what got us where we are.
I think she lost because, like most members of congress, she backed Bush’s deliberate murder of Iraqi civilians.
—Myca
Lest you think I’m being hyperbolic, I’ll offer a link.
Quoting John Yoo:
and
As Adam Serwer says:
This is the problem. Conservative legal theorists have embraced a theory of essentially unlimited and unaccountable presidential power in certain areas, military actions being one of them. This started before President Bush, but it really came to its fruition there. And yeah, I think it was done for cheap partisan advantage at the time, because conservatives love war and torture when they’re doing it … but now Pandora’s Box is opened, baby, and presidents can just do shit! Liberals, conservatives, Democrats, Republicans, it doesn’t matter anymore. The president is king!
Do I think this is the preferred outcome of conservative thinkers? No, but I think it was an easily foreseeable outcome that they ignored because they’re short-sighted children playing at being adults. And now it’s too late. Like the song says, “you can’t shake the devil’s hand, then say you’re only kidding.”
And yeah, now conservatives think it’s a bad idea. Of course they do. Like RonF said, he doesn’t have a clue, “WTF John Yoo even is.”
Well, Ron, John Yoo was the author of the infamous ‘torture memo’ which justified torture of prisoners by the US government. He argued that ,”if the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him.” He argued that 4th amendment protections do not apply to US citizens and that the president may order wiretaps on American citizens without a warrant or further legal justification.
He was a key Bush Administration figure and maybe the single strongest advocate of unrestrained presidential power. Of course you don’t know who he is. That’s my point. Conservatives only started giving a shit about this 10 minutes ago.
And no, of course none of this is exculpatory towards Obama. He shouldn’t be claiming this power, whether Bush and his lackeys did or not. My point is just that this isn’t the beginning of the story, or the middle of the story. This is the end of the story, and there are those of us on the left who have been hollering about it, and ignored, for years.
—Myca
Touche, Jake. Of course, what happens there is that 9/11/2001 is held to be a game changer – that we couldn’t afford to ignore failed states anymore. Whether that’s a) true or b) a convenient rhetorical device to cover your true motives is a function of your political outlook, I suppose.
What we’re finding is that there’s states and there’s states. Iraq started out as a state that actually wanted to continue as a State. They had their chance to fraction along sectarian lines, but they didn’t. There’s still a divide, but it’s one that they’re working with. Afghanistan, OTOH, isn’t really a unified state. The people in the mountains in the “autonomous tribal regions” have no particular investment in Afghanistan as a modern State. Hell, Alexander the Great couldn’t conquer them. They don’t give a rat’s ass about who says what in Kabul. It’s hard to nation build if there’s no nation to begin with.
When President Bush fils led us into an invasion of Iraq I was pretty skeptical. “He’s pissed because Saddam tried to have his old man killed” had resonance with me. I came around in favor of the move despite any skullduggery of Administration motives because Saddam was, in fact, doing a lot of bad things and there was a good chance of success. I would say that overall the mission has been successful. There is still violence in Iraq and there will continue to be for some time, but it’s a roughly functional parliamentary democracy and I don’t think you’ll see Iraq invading it’s neighbors or funding terrorism any time soon. There’s been a price paid for that, in both American lives and Iraqi lives – and those of Saudis and Syrians and others who decided to join in with the terrorists and insurgents. It’s up to the Iraqis to determine if the part of the price they paid was worth it.
Afghanistan is a different story. President Obama has tried to manage it to a schedule instead of to milestones. That doesn’t work in war. And there was an interregnum after the invasion there where we had the Taliban on the ropes but let them back up. We’re folding where a winning strategy requires us to double down. But I’m not sure we can win that one in any case. In the Declaration of Independence it says:
The threshold for what’s sufferable – at least since the 18th century – seems to be a lot lower in Western Europe and especially in what became America than in the Middle East. “Inshallah” is not an American attitude. We can’t give Afghanistan something they don’t want to pay the price to keep.
Meanwhile, in one of our other wars (Libya), it appears we are going to make the same mistake we made in Iraq:
I especially like this part:
We won’t? Because U.N. “peacekeepers” have such a stellar record of preventing intergroup conflict in such circumstances? My God, do these people think we are all completely ignorant? And how effective have African Union troops been?
Well, we saw that in Iraq for sure. Just what will these troops do if an Islamist group pops up, well armed, and decides that what Libya needs is sharia law? Will they fight them to establish a parliamentary democracy? Or will they say “Fine, just don’t shoot at us.” How many of those troops will come from countries with a functional parliamentary democracy?
Yeah. I was stunned by that. How does anybody as educated, intelligent and involved as RonF not know who John Yoo is? I cannot begin to fathom how this happens. Yoo was the lightning rod in the debate about torture committed by the US during the aughts. It was a pretty big, loud, widespread debate as I recall. Yoo’s name and Yoo’s briefs/memos were central to the arguments about torture. Central to the arguments of both sides of the debate. I don’t get it at all.
DAUGHTER: Father, that man’s bad.
Sir Thomas MORE: There’s no law against that.
ROBERT: There is. God’s law.
MORE: Then God can arrest him.
WIFE: While you talk he’s gone.
MORE: And go he should, if he were the Devil himself, until he broke the law.
ROBERT: So, now you would give the Devil benefit of law?
MORE: Yes. What would you do, cut a great road through the law to get after the Devil?
ROBERT: Yes, I’d cut down every law in England to do that.
MORE: Oh? And when the last law was down and the Devil turned round on you, where would you hide, Robert, the laws all being flat? This country is planted thick with laws from coast to coast. Man’s laws, not God’s. And if you cut them down – and you’re just the man to do it – do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law – for my own safety’s sake.
A Man for All Seasons by Robert Bolt
How does anybody as educated, intelligent and involved as RonF not know who John Yoo is?
Because I suck at names. The name of some bureaucrat in the Bush Administration who wrote a couple of memos? I don’t remember. The memos themselves and the various arguments advanced in favor and in opposition I do.
Here’s the Youtube link for that speech (and it’s a great one). The part of the script you cite starts at 2:05 of that link.