Sunday, June 19, 2011

And Now, Libya

In an interview on ABC's This Week With George Stephanopoulos shortly before assuming the Presidency, Barack Obama asserted "a belief that we need to look forward as opposed to looking backwards,” signaling the policy of giving a pass to the abuses of the Bush Administration. Asked to comment, former Bush White House lawyer Bradford A. Berenson remarked "the last thing a new administration wants to do is spend its time and energy rehashing the perceived sins of the old one."

Senator Barack Obama had said of whistleblowers, as Glenn Greenwald pointed out, "Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled." Asked in a December, 2007 interview with the Boston Globe about Iran, presidential candidate Obama stated "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation....”

Reporting in The New Yorker last month about the prosecution for violation of the (1917) Espionage Act of Thomas Drake, a former senior executive at the National Security Agency (the government’s electronic-espionage service), Jane Mayer wrote

When President Barack Obama took office, in 2009, he championed the cause of government transparency, and spoke admiringly of whistle-blowers, whom he described as “often the best source of information about waste, fraud, and abuse in government.” But the Obama Administration has pursued leak prosecutions with a surprising relentlessness. Including the Drake case, it has been using the Espionage Act to press criminal charges in five alleged instances of national-security leaks—more such prosecutions than have occurred in all previous Administrations combined. The Drake case is one of two that Obama’s Justice Department has carried over from the Bush years.

Gabriel Schoenfeld, a conservative political scientist at the Hudson Institute, who, in his book “Necessary Secrets” (2010), argues for more stringent protection of classified information, says, “Ironically, Obama has presided over the most draconian crackdown on leaks in our history—even more so than Nixon.”

Later in her article, and more broadly, she added

Jack Balkin, a liberal law professor at Yale, agrees that the increase in leak prosecutions is part of a larger transformation. "We are witnessing the bipartisan normalization and legitimization of a national-surveillance state," he says. In his view, zealous leak prosecutions are consonant with other political shifts since 9/11: the emergence of a vast new security bureaucracy, in which at least two and a half million people hold confidential, secret, or top-secret clearances; huge expenditures on electronic monitoring, along with a reinterpretation of the law in order to sanction it; and corporate partnerships with the government that have transformed the counter-terrorism industry into a powerful lobbying force. Obama, Balkin says, has "systematically adopted policies consistent with the second term of the Bush Administration."

Remaining consistent with adopting policies of the prior presidency, Barack Obama appears to have reversed himself on the Executive's war-making authority. The War Powers Resolution mandates "Whenever United States Armed Forces are introduced into hostilities," the President submit a report to Congress, after which "the President shall terminate any use of United States Armed Forces" unless Congress has declared war or specifically authorized such military action.

But not this President. According to the New York Times' Charlie Savage

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.

Balkin explains that President Obama's decision borrows from that of his immediate predecessor

who sought legal justification for his decision to engage in waterboarding and other "enhanced interrogation techniques," which constituted torture. Bush wanted above all to be able to deny that he was violating the anti-torture statute and other laws and treaties. So he found a small group of lawyers in the OLC, headed by John Yoo, and asked for their opinions. This short-circuited the usual process through which the OLC collected views from various agencies and then used them to develop legal opinions for the executive branch. That is, Bush (assisted by his Vice-President, Dick Cheney) arranged matters so that decisions about waterboarding and enhanced interrogation techniques would be in the hands of lawyers he knew would tell him yes; the normal process of collating opinions was short-circuited and other lawyers were effectively frozen out.

Obama's practice is different, but it has disturbing similarities. Normally, Obama would have asked the OLC for its opinion, and as noted above, the OLC would have polled legal expertise in various agencies, consulted its precedents, had long discussions, and then come up with a scholarly opinion that is normally binding on the executive branch. Instead, Obama routed around the OLC, asking for opinions from various lawyers, including the White House Counsel and the Attorney-Advisor for the State Department. It is difficult to escape the conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC.

Obama's strategy, like Bush's, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

Clearly, Bradford Berenson was right- President Obama does not want to "rehash" old "perceived sin," as long as it took place under the eye of the prior President. (John Edwards should be so lucky.) Imagine how much easier it would be for a prosecutor or District Attorney not to have to "rehash perceived sins," such as embezzlement or armed robbery, which had taken place a few years earlier.

But Berenson was wrong when he suggested that Obama would let bygones be bygones because "the president himself doesn’t seem to share that bloodlust" of the silly left demanding accountability. It appears, instead, that President Obama declined to challenge the sins of the past because it would have been uncomfortable to be investigating that behavior at the same time he engaged in the same tactics.

Civil libertarian and war critic Glenn Greenwald notes "it should also go without saying that a belief in the morality of this war is not an excuse for waging it illegally." The Administration's contempt for Congress and the law is unrelated to the wisdom (or lack thereof) of conducting what are, to anyone with an I.Q. reaching into the double digits, "hostilities."

Demonstrating skill as both a legislator and comedian, Al Franken stated-or quipped- of the President's rationale, "you know, whatever it is, I don't agree with it." The President can relax, however. He may have, as Greenwald observed in January, invoked due-process-free assassination hit lists of American citizens, sweeping executive power and secrecy theories used to justify it, the multi-tiered, "state-always-wins" justice system for detainees, a vastly more aggressive war on whistleblowers and press freedoms, and new presidential immunity doctrines. But he has not tweeted a body part, committed adultery with his campaign's videographer, or lied to a grand jury about sex. The important things.

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