By Steve Hynd
There's a lot of comment today on the NYT's report saying Obama ignored the views of his administration's top lawyers - including Attorney General Eric Holder, OLC Chief Caroline Krass, and DoD General Counsel Jeh Johnson - in telling America that he can ignore the War Powers Resolution. All three had told him he needed congressional authorization to continue the war in Libya but instead:
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.
they did not want to seek Congressional approval, even though they easily could have obtained it, because they wanted to establish the "principle" that the President is omnipotent in these areas and needs nobody's permission (neither from Congress nor the courts) to do what the President wants.
...what is undeniable is that Obama could have easily obtained Congressional approval for this war -- just as Bush could have for his warrantless eavesdropping program -- but consciously chose not to, even to the point of acting contrary to his own lawyers' conclusions about what is illegal.
Other than the same hubris -- and a desire to establish his power to act without constraints -- it's very hard to see what motivated this behavior. Whatever the motives are, it's clear that he's waging an illegal war, as his own Attorney General, OLC Chief and DoD General Counsel have told him.
Absolutely spot on. But it's no surprise. As long ago as 2006 I was warning Glenn, amongst others, that the Democrats supposed urge to cave to the Bush administration on the powers of the Imperial Presidency wasn't coming "from a place of fear and excess caution" as Glenn put it back then, but rather from "satisfaction with the status quo which is handing the next ... Democrat President a massively greater power" by virtue of Bush's precedent. Back then, I noted an op-ed by Robyn E. Blumner in the St. Petersburg Times which nailed the danger.
the changes that George W. Bush has made to our nation's constitutional firmament may not depart with the first family's bags. His disregard for the separation of powers has so dramatically distorted the office of the president that he may have engineered a turning point in American history.
...Bush has taught tomorrow's leaders that, if there are no consequences for ignoring legal constraints on power and if no one stops you from conducting the nation's business in secret, you don't have to be accountable. He is ruling through the tautological doctrine of Richard Nixon, who told interviewer David Frost that as long as the president's doing it "that means it is not illegal.''
And so it has proven.
If only we'd asked the damn question.
So when can the world start to say that there is no more republic called the USA? After all, isn't a republic a form of gov't in which decisions are made in regard to laws & not at the whim of the head of state. Also "One common modern definition of a republic is a government having a head of state who is not a monarch." [wikipedia: http://j.mp/kSnwjq ]. But if the USAs head of state makes decisions on his whim of the day, so-to-speak, isn't he then a monarch and isn't then the USA not a republic.
ReplyDeleteIt's taken some time for people to openly call the USA an empire without anyone arguing, except about details. I wonder how long it'll take citizens to drop the fiction of the USA as a republic and to embrace the idea of an elected monarch not subject to any domestic, or it seems international, law. You need a new constitution that gets rig of all those old post-enlightment 17th century ideas and enshrines the modern idea of an elected [we really know he/she/it will be bought], monarch. You could call the monarch a CEO if the regal word offends the quaint citizens.
You are right Geoff
ReplyDeleteThe US is and empire building plutocracy but the emperor is not in charge - he takes his orders from a few plutocrats. In the case of the Bush administration the plutocrats actually held the office. Not so in the case of Obama but he is still taking orders from them so it's the same thing.