Standing Strong, Maybe


At his press availability (transcript here) on June 24, Presidential Press Secretary Jay Carney explained his boss' approach to the deficit reduction talks as

we are confident that we can continue to seek common ground and that we will achieve a balanced approach to deficit reduction -- if we continue to seek common ground, rather. And we remain confident that we can get that done....

But we believe that we can move forward as long as no one in the talks takes a “my way or the highway” approach.

The previous day, House Speaker John Boehner had said "tax increases are off the table," including, apparently, elimination of tax loopholes for the oil industry and others whose profits have soared while the economy remains in the tank. And Eric Cantor and Jon Kyl quit the deficit reduction talks led by the Vice-President, withthe House Majority Leader whining "the Democrats insist that any deal must include tax increases."

Yes, whining. When federal tax revenues as a percentage of gross domestic product (graph, below, from the Federal Reserve Bank of St. Louis via Krugman) are at their lowest level in over half a century, it is whining. When Republicans are demanding approximately $4 trillion in spending cuts over ten years, it's whining. And when the top Republican in talks takes a hike (for whatever reason), it's whining.






The President's spokesman advocates "a balanced approach." He decries "a 'my way or the highway approach.'"

But over two months ago Barack Obama showed his hand when he called for a twelve-year cut of $4 trillion in the deficit. Republican administrations come, blow up the deficit, Republican administrations go- then deficits must be slashed in Democratic administrations, even when spending cuts will endanger an economy struggling to recover.

So which President will it be? The one who stands strong against 'my way or the highway'? Or the one who brags about spending cuts he achieves and proposes new ones?



Next: The answer, as if you don't already know it.

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Keep 'Em Barefoot, Pregnant- And Ignorant


At the Games for Change Festival on Monday in New York City, Al Gore displayed dangerous radicalism, remarking

One of the things we could do about it is to change the technologies, to put out less of this pollution, to stabilize the population, and one of the principal ways of doing that is to empower and educate girls and women. You have to have ubiquitous availability of fertility management so women can choose how many children to have, the spacing of the children. You have to lift child-survival rates so that parents feel comfortable having small families. And most important, you have to educate girls and empower women. And that's the most powerful leveraging factor, and when that happens, then the population begins to stabilize and societies begin to make better choices and more balanced choices.

It must be dangerous radicalism because Rush Limbaugh remarked

"'You have to have ubiquitous availability of fertility management so women can choose how many children to have, the spacing of the children.'" He has acknowledged that he has no interest, no intention of controlling any sexual urges, so women better be prepared to deal with guys like him -- and they better be able to have access to abortion or what have you. There's much more to this. This is descent, folks, into inanity. Algore is doing Paul Ehrlich now: Overpopulation. The key is women. Women must be made to do the right thing, in order to save the planet.

Ignore the ad hominem attack upon Al Gore by a guy who himself appears to have enjoyed a sexual escapade or two. More critically, the guy just makes things up: "they better be able to have access to abortion or what have you." The tipoff that Gore never mentioned abortion would be the "or what have you." Limbaugh then claims Gore urged "women must be able to do the right thing, in order to save the planet."

What part of choice does Rush Limbaugh claim not to understand? The former Vice President mentioned "choose" or "choices" three (3) times and suggested that we "empower and educate girls and women" so that "the population begins to stabilize and societies begin to make better choices and more balanced choices." A radical idea, that.

Limbaugh calls "overpopulation" a "theorem that has been totally debunked.' As with everything he claims has been disproven, he does not tell us who and how his worldview has been confirmed. In this case, we know it's not the United Nations, which has noted that there were 1 billion people in 1804 and only 2 billion individuals 123 years later, in 1927. But 72 years later, in 1999, the world's population had tripled to 6 billion and is projected to reach 10 billion by 2100. Yes, it took approximately 7,000 years since Adam and Eve reportedly showed up for the world to reach 1 billion people- and fewer than 200 years for it to increase sixfold. No pattern there.

The latest attack on the guy elected President in 2000 might have been prompted by the right's obsessive Gore-hatred or by its obsessive hatred of environmentalists. But it is probably primarily a part of the increasing war on family planning, which has found its latest iteration in the effort in Kansas to legislate abortion out of existence. (Fat chance, that; coat hangers are still inexpensive.) Ultimately, it's not about abortion but about family planning as suggested (video, below) by Texas State Representative Wayne Christian, who spilled the beans:






Conservatives everywhere used to be exorcised about teenage and out-of-wedlock pregnancy. Upon discovering that Bristol Palin, an unwed teenager, was pregnant, conservatives uttered nary a gasp- not only because she was the daughter of a conservative Republican, but because there would be a live birth, unhindered by family planning. When a Democrat recommends that women become educated and empowered so they are able to make choices freely, and the right gets in an uproar, it ought to give the rest of us an inkling that it's not just abortion anymore.

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Michele Bachmann And The Politics Of Ridicule


Democrats and Republicans alike, Rolling Stone's Matt Taibbi maintains, "are making the mistake of laughing at (Michele) Bachmann."

In a profile which is thoroughly entertaining, if less-than intellectually rigorous, Taibbi portrays a candidate whose support among tea party supporters and "brilliantly fortifying lack of self-doubt.... mixed with pathological, relentless, conscienceless lying" makes her a legitimate threat to seize the Repub nomination for President. Mary Cecconi, who once defeated Michelle Bachmann in a school board race, added "I think Michele honestly believes whatever she says in the moment," which suggests a politician who can credibly make any remark advantageous at the time.

Taibbi cites Bachmann's "TV-ready looks, her easy confidence in public speaking, her quick command of a mountainous database of (frequently bogus) facts." Warning critics not to laugh at Bachmann, he then mocks her supporters, arguing

tales by Bachmann work precisely because there are a great many people in America just like Bachmann, people who believe that God tells them what condiments to put on their hamburgers, who can't tell the difference between Soviet Communism and a Stafford loan, but can certainly tell the difference between being mocked and being taken seriously.

Taibbi maintains that if we wrongly conclude that the Minnesota Republican "is uniquely crazy" and "laugh at Michele Bachmann for going on MSNBC and blurting out that the moon is made of red communist cheese, these people don't learn that she is wrong." But while ridicule of Bachmann (and especially of her supporters) is counter-productive, failing to analyze critically her comment and record also would backfire.

Another GOP presidential candidate, the subject of considerable criticism, would understand. Newt Gingrich's candidacy is not tanking; it has tanked. And, with some justification, he blames it on the abuse heaped upon him since he began his quest. The former House Speaker wrongly believes that he was targeted because Democrats fear him, but evidently knows that reports about campaign aides deserting him, as well as his Tiffany line of credit (and an obnoxious, but effective, glittering incident), contributed to his demise.

While attributing coastal elitism Taibbi primarily to others (in his last sentence, appearing to include himself), Taibbi doesn't quite understand conservatives, in images of pop culture, recognize that

Here liberalism is a matter of shallow appearances, of fatuous self-righteousness; it is arrogant and condescending, a politics in which the beautiful and the wellborn tell the unwashed and the beaten-down and the funny-looking how they ought to behave, how they should stop being racist or homophobic, how they should be better people. In an America where the chief sources of one's ideas about life's possibilities are TV and the movies, it's not hard to be convinced that we inhabit a liberal-dominated world.....

Frank wrote seven years ago, when conservative talk radio was not as dominant and social media practically non-existent. But he asserted, in a way Taibbi does not, the value of confronting the self-serving arguments of the conservative elite, rather than the constituency that elite targets. And it is not only Bachmann or Sarah Palin whose rise would be aborted by such scrutiny, but that of Riok Perry and other manipulators on the right.

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Not So Surprising, In Retrospect


It did not come upon the midnight clear- it was an evening, in fact. But we were told the event was nearly as transforming as

For lo! the days are hastening on, by prophet-bards foretold,
When with the ever circling years comes round the age of gold;
When peace shall over all the earth its ancient splendors fling,
And the whole world send back the song which now the angels sing.

What better time to be reminded of a Christmas hymn than when much of the country is suffering from sweltering heat and humidity? And weren't we informed "lo! the days are hastening on.... comes round the age of gold"? The Associated Press reported on March 22:

A transformative health care bill is headed to President Barack Obama for his signature as Congress takes the final steps in Democrats' improbable and history-making push for near-universal medical coverage.

On the cusp of succeeding where numerous past congresses and administrations have failed, jubilant House Democrats voted 219-212 late Sunday to send legislation to Obama that would extend coverage to 32 million uninsured Americans, reduce deficits and ban insurance company practices such as denying coverage to people with pre-existing medical conditions.

"This is what change looks like," Obama said later in televised remarks that stirred memories of his 2008 campaign promise of "change we can believe in."

"We proved that this government -- a government of the people and by the people -- still works for the people."

Transformative, improbable, history-making, "change we can believe in" from "a government of the people and by the people." That seemed almost as good as was a birth, even more improbable and transformative, in Bethlehem.

But the Affordable Care Act has been beset by numerous challenges, in the courts and in Congress. Sebastian Jones describes the effort by both the Republican Party and the Democratic Party to destroy the Independent Payment Advisory Board established by the Act:

a little-known Democratic congresswoman named Allyson Schwartz signed on as a cosponsor of Roe’s bill. Her defection was enough of a partisan hiccup to earn some prominent ink in the Beltway press. An article that landed on the cover of the New York Times in mid-April suggested that conscientious opposition to IPAB was becoming an issue that crossed the political aisle.

What Schwartz’s defection really represented, however, was not the MacGuffin of earnest bipartisanship but a serious moment of escalation in a war that the medical industry is waging against the lynchpin of President Obama’s health care reforms. To understand why, it helps to know a little bit about Schwartz and who she represents. A former health care executive from a suburban district outside Philadelphia, she is the health policy brains of the New Democrat Coalition, a group of forty-two House members whose close relationship with several hundred Washington lobbyists has made them one of the most successful political money machines since the Republican K Street Project collapsed in 2007. In the past several years, they have played an instrumental role in helping the financial and health care industries limit and weaken proposed reforms; IPAB would appear to be their next target. And if the history of the group is any indication, where Schwartz goes, the votes of a substantial number of her New Democrat colleagues are liable to follow.

Schwartz is "little known" but has become much more than a back-bencher. She has been tapped by Democratic National Committee chairwoman Debbie Wasserman Schultz to head candidate services for the DCCC, in which role she appears to be recruiting centrist and/or pro-corporate Democrats to run for the House. So Digby remarks

I continue to be surprised that the administration is allowing so much play on the health care reforms. If that is his signature legacy you'd think he would exercise strong control over the Democrats on this one issue if nothing else. Certainly, the president is the head of the Democratic Party and could nix a big promotion of someone who is leading the charge to destroy the most important piece of the cost savings in the reforms if he wanted to. I don't get why any of this is on the table. Particularly when the stakes are this high.

Neither did I, less-connected, insightful, or eloquent (and far less pithy) than Ms. Parton, see coming the President's apparent acquiescence in the effort to chip away at his signature accomplishment. (Although this probably has been the President's most important- and first- achievement globally, one subject to reversal by any future President.)

But it was probably naive. The PAD may be revoked by Congress, the insurance mandate junked by the Court, or the Act defunded, but the Affordable Care Act itself is highly unlikely to be rescinded. And would it still not be historic? Would it still not stand as an accomplishment which Presidents Roosevelt, Truman, Kennedy, Johnson, Carter, and Clinton did not achieve? Would it not still be the "landmark health-care legislation" the Washington Post characterized on the afternoon of March 22, 2010 the President would be signing into law the following day? Its impact may prove to be less transformative than minimal- or even detrimental- but the President would have achieved something he and his supporters have claimed for him since March 21, 2011.

And isn't that what it was mostly about?

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The Audaciousness of Joe


Joe Scarborough is daring and fearless. He has convinced himself, and wants to convince us.

It began Sunday, when Senator John McCain appeared with Christiane Amanpour on ABC's This Week (transcript here) and revealed

Well, I was more concerned about what the candidates in New Hampshire the other night said. This is isolationism. There's always been an isolation strain, isolation strain in the Republican Party, the Pat Buchanan wing of our party. But now it seems to have moved more center stage, so to speak.

A few moments later, McCain commented

I wonder what Ronald Reagan would be saying today.... He would be saying that's not the Republican Party of the 20th century and now the 21st century. That is not the Republican Party that has been willing to stand up for freedom for people for all over the world, whether it be in Grenhttp://www.blogger.com/img/blank.gifada, that Ronald Reagan had a quick operation about, or whether it be in our enduring commitment to countering the Soviet Union.

This was too much for Scarborough, who on Monday in one of his recurring pieces for Politico wrote

It is laughable to suggest that any Republican who does not support being involved simultaneously in three hot wars is taking up the cause of the John Birch Society, turning their backs on internationalism and calling for bringing our troops home.

That's obvious on its face, but Scarborough couldn't contain himself, remarking

Following the terrorist attack against Marines stationed in Beirut, Reagan’s Defense Department began developing a foreign policy designed to prevent the kind of military tragedies that plagued America from Vietnam through Beirut. Defense Secretary Caspar Weinberger, with the help of Colin Powell, created a conservative approach to military intervention that clearly outlined when military troops should be committed to foreign wars.

The Reagan doctrine limited such events to a limited number of circumstances where the armed conflict is vital to American interests, where our objectives are clearly defined, where our commitment is full and overwhelming and where the war has public support.

These are lovely sentiments. But as this site catalogs, since Ronald Reagan left office there have been 33 terrorist attacks against the United States and/or Americans abroad, not including the under-reported and little understood incident on January 17, 2011 in Spokane, Washington.

It would seem that the attacks on the World Trade Center, the Pentagon, and one intended for the U.S. Capitol on September 11, 2001 (three among the 33) would have some impact on American foreign policy. However, Scarborough, hot for a doctrine developed in the 1980s, apparently doesn't think so.

The acts of terrorism of nearly ten years ago do not of themselves justify the current wars in Libya, Afghanistan, or Iraq, but U.S. foreign policy must be formulated and evaluated in light of conditions as they currently exist, rather than as they existed over a quarter of a century ago.

Scarborough is pleased "Some GOP candidates are finally getting that message.... that there is a there is a middle ground between McCain’s interventionism and Ron Paul’s isolationism." There is, in fact, approximately 80 yards of a football field in that middle ground, room for practically everyone. He concludes

But these days, Reagan finally seems to be more than a punch line for Republican politicians. These days, it seems, a few candidates are actually following the great man’s advice by supporting a more realistic approach to war and peace.

Courageously criticizing a losing GOP presidential nominee, Scarborough sees himself as boldly breaking with a neo-conservative orthodoxy in foreign affairs. But there is nothing so conventional, nothing so politically safe, and nothing so divorced from reality as a Republican pol or pundit ignoring present realities and wrapping himself in the shroud of Ronald(6) Wilson(6) Reagan(6).

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A Free Pass For Clarence Thomas


The sun rises in the east, sets in the west, and Clarence Thomas has demonstrated that he lacks the basic integrity required of judges below the level of the U.S. Supreme Court. The New York Times reports

The publicity-shy friend turned out to be Harlan Crow, a Dallas real estate magnate and a major contributor to conservative causes. Mr. Crow stepped in to finance the multimillion-dollar purchase and restoration of the cannery, featuring a museum about the culture and history of Pin Point that has become a pet project of Justice Thomas’s.

The project throws a spotlight on an unusual, and ethically sensitive, friendship that appears to be markedly different from those of other justices on the nation’s highest court.

The two men met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas.

In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.

Although the Supreme Court is not bound by the code, justices have said they adhere to it. Legal ethicists differed on whether Justice Thomas’s dealings with Mr. Crow pose a problem under the code. But they agreed that one facet of the relationship was both unusual and important in weighing any ethical implications: Justice Thomas’s role in Mr. Crow’s donation for the museum.

The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge. In addition, judges are not even supposed to know who donates to projects honoring them....

Mr. Crow, 61, manages the real estate and investment businesses founded by his late father, Trammell Crow, once the largest landlord in the United States. The Crow family portfolio is worth hundreds of millions of dollars and includes investments in hotels, medical facilities, public equities and hedge funds.

A friend of the Bush family, Mr. Crow is a trustee of the George Bush Presidential Library Foundation and has donated close to $5 million to Republican campaigns and conservative groups. Among his contributions were $100,000 to Swift Boat Veterans for Truth, the group formed to attack the Vietnam War record of Senator John Kerry, the 2004 Democratic presidential candidate, and $500,000 to an organization that ran advertisements urging the confirmation of President George W. Bush’s nominees to the Supreme Court.

Mr. Crow has not personally been a party to Supreme Court litigation, but his companies have been involved in federal court cases, including four that went to the appellate level. And he has served on the boards of two conservative organizations involved in filing supporting briefs in cases before the Supreme Court. One of them, the American Enterprise Institute, with Mr. Crow as a trustee, gave Justice Thomas a bust of Lincoln valued at $15,000 and praised his jurisprudence at an awards gala in 2001.

The institute’s Project on Fair Representation later filed briefs in several cases, and in 2006 the project brought a lawsuit challenging federal voting rights laws, a case in which Justice Thomas filed a lone dissent, embracing the project’shttp://www.blogger.com/img/blank.gif arguments. The project director, an institute fellow named Edward Blum, said the institute supported his research but did not finance the brief filings or the Texas suit, which was litigated pro bono by a former clerk of Justice Thomas’s.

The relationship is similar to that held by then-Supreme Court Justice Abe Fortas, who also took inappropriate gifts from wealthy benefactors and, unlike, Thomas, resigned in pressure. Clarence Thomas is a special guy, one who has attended a Koch-sponsored political fundraiser; refused to recuse himself from lawsuits filed against the Affordable Care Act while wife Ginni, a lobbyist for right-wing organizations, has publicly and actively worked against the Act; and reported to the IRS that Ginni earned no non-investment income even while she was working for the Heritage Foundation.

Digby sees "no chance" Justice Thomas will resign over the latest scandal, in part because Bush v. Gore set the Court on a much more partisan course. She believes though, that if Thomas is found to have utilized social media in the same manner as did Anthony Weiner, "all bets are off."

No, even then, the chance that Clarence Thomas, a man without shame, would resign from the Supreme Court is nil to minimal, and minimal is on its way out of town. Representative Weiner did not have his wife stand beside him during either of his press conferences, while it is likely Thomas- if pressed to depend his behavior would insist that she go the Wendy Vitter route. Additionally, it is unlikely Ginni Thomas would be as successful professionally were her husband not sitting on the U.S. Supreme Court. (Indeed, the relationship is the basis of a portion of the conflict of interest Thomas enjoys.)

And there is an additional reason that Clarence Thomas would not be forced from the Court- there probably is no one in the Executive or Legislative Branch who would press the point. That seems to have been taken care of as Earl Ofari Hutchinson, writing before the Crow/Thomas interplay, notes:

Democrats, from the White House down, screamed for New York Representative Anthony Weiner to resign, and he finally did. But it’s not a Democrat who’s breathing the biggest sigh of relief at Weiner’s downfall. It’s Supreme Court Justice Clarence Thomas.

There was much talk a year ago that Weiner would be the point man on the House Judiciary Committee if it decided to go after Thomas for his long trail of financial manipulations, abuse, and duplicity. Weiner gave signs that he’d be the go-to guy against Thomas. He had been publicly hammering Thomas’ dealings and demanding that he recuse himself from any High Court deliberations on the constitutionality of the health care reform law that conservatives loathe.

Weiner certainly had a lot of ammunition to make Thomas’ misdeeds a prima facie legal and political embarrassment for the GOP. Thomas’ wife Ginni had earned money from assorted right-wing foundations and think tanks, including the Heritage Foundation, the Koch brothers, the Coors family and Richard Mellon Scaife, all of whom had a major interest in a number of Supreme Court rulings. While Thomas disclosed her earnings, he did not disclose the speaking fees and perks he got from the same conservative groups that his wife worked for. He refused to acknowledge her involvement with Liberty Central, for example.

This is, as Hutchison recalls, the guy who became a Supreme Court Justice only by committing perjury before the Senate Judiciary Committee. His resignation probably would leave him vulnerable to a rehash of the Thomas-Anita Hill affair (pun intended), which would crush his reputation and legacy.

But the primary reason Clarence Thomas will not resign under any circumstances is because he won't have to do so. And for that, we can thank in part Nancy Pelosi, Harry Reid, and Barack Obama, in what was a disappointing performance by the first two.

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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. http://www.blogger.com/img/blank.gif

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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