The New York Times describes how legal reasoning works in the Obama administration. It goes like this: the end justifies the means.
David Barron and Martin Lederman had a problem. As lawyers in the Justice Department’s Office of Legal Counsel, it had fallen to them to declare whether deliberately killing Mr. Awlaki, despite his citizenship, would be lawful, assuming it was not feasible to capture him … as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. …
Indeed, Mr. Barron and Mr. Lederman had produced a definitive denunciation of such reasoning, co-writing a book-length, two-part Harvard Law Review essay in 2008 concluding that the Bush team’s theory of presidential powers that could not be checked by Congress was “an even more radical attempt to remake the constitutional law of war powers than is often recognized.” Then a senator, Mr. Obama had called the Bush theory that a president could bypass a statute requiring warrants for surveillance “illegal and unconstitutional.”
But Barron and Lederman realized that they had to ‘evolve’.
Now, Mr. Barron and Mr. Lederman were being asked whether President Obama’s counterterrorism team could take its own extraordinary step, notwithstanding potential obstacles like the overseas-murder statute …
As they researched the rarely invoked overseas-murder statute, Mr. Barron and Mr. Lederman discovered a 1997 district court decision involving a woman who was charged with killing her child in Japan. A judge ruled that the terse overseas-killing law must be interpreted as incorporating the exceptions of its domestic-murder counterpart, writing, “Congress did not intend to criminalize justifiable or excusable killings.”
And by arguing that it is not unlawful “murder” when the government kills an enemy leader in war or national self-defense, Mr. Barron and Mr. Lederman concluded that the foreign-killing statute would not impede a strike. They had not resorted to the Bush-style theories they had once denounced of sweeping presidential war powers to disregard Congressionally imposed limitations.
And evolve they did. The rest, as they say, is history. In their own defense they believe they’ve managed to avoid the intellectual excesses of the Bush Doctrine. But as a practical matter, they gave the Obama administration far more power than was used under than under President Bush’s “sweeping” arrogation. The Washington Post published a graphic showing the drone activity under President Obama.
Permanent War that is Non-War
What is truly remarkable about this graph is not only how the attacks have spiked, but that they occur in places where military action has not been formally authorized by Congress.
Congress, you may remember, once had the power the declare war according to a ‘hundred year old document that nobody reads any more’. That was before clever lawyers figured out that cases involving children in Japan could be cited to authorize striking American citizens anywhere on the planet.
How does one resolve the contradiction between what you hear and what you get? President Obama campaigned on ‘ending the war’ and engaging in ‘grand bargains’ with the Muslim world. But perhaps he realized that, given the low information character of his voter base, that for so long as he used the correct terminology to describe his actions, he could treat them like kiddies; he could do one thing while pretending to be engaged in another.
Thus, the War on Terror became law enforcement. Intervention became ‘kinetic military activity’. Destabilizing any country he chose to target became known as ‘leading from behind’. And when anybody objected to the apparently military character of events they were simply characterized as consequent to a ‘duty to protect’. And the kiddies clapped.
In other words, as long as he lied to his base he could get away with anything. But eventually even the worm turns. Even the chumps wise up.
The New York Times is belatedly realizing that President Obama has altered the meaning of the word ‘war’ beyond recognition and having done so is constrained by nothing. Reflecting on Eric Holder’s apparent concession to Rand Paul that attacking Americans on US soil is not Constitutionally permissible law professor Ryan Goodman realizes it’s just another word game.
The Senate confirmed John O. Brennan as director of the Central Intelligence Agency on Thursday after a nearly 13-hour filibuster by the libertarian senator Rand Paul, who before the vote received a somewhat odd letter from the attorney general.
“It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ ” the attorney general, Eric H. Holder Jr., wrote to Mr. Paul. “The answer to that question is no.”
The senator, whose filibuster had become a social-media sensation, elating Tea Party members, human-rights groups and pacifists alike, said he was “quite happy with the answer.” But Mr. Holder’s letter raises more questions than it answers — and, indeed, more important and more serious questions than the senator posed.
What, exactly, does the Obama administration mean by “engaged in combat”? The extraordinary secrecy of this White House makes the answer difficult to know. We have some clues, and they are troubling. …
By declining to specify what it means to be “engaged in combat,” the letter does not foreclose the possible scenario — however hypothetical — of a military drone strike, against a United States citizen, on American soil.
What does it mean to be “engaged in combat”? Well it means whatever the President means it to mean, Mr. Goodman. You are now helpless.
Lawyers have rarely been able to contain power. As practical matter power is constrained only by politics, which as Clausewitz once observed can be another name for another thing which doesn’t exist any more.
Power is limited by the degree to which an executive authority can enforce obedience. It is constrained by the extent to which authority can expect an order to be followed. It is bounded by the fear of political repercussions; by the dread of losing office and ultimately, by the apprehension that having lost office a person might face jail.
Obama’s voters abolished the political consequences. They re-elected him and got what they voted for. President Obama’s unbridled accumulation of power is not the product of a legal failure. It is the consequence of a political failure. The Democratic and Republican parties have allowed a relatively small cabal of individuals of no particular moral stature to exercise unbridled authority over a great state. They been left free for years now to operate without a budget, to utter obvious lies and have Candy Crowley insist they are the truth, they have been permitted to scoff at the law — Fast and Furious comes to mind — and to proceed without even a cursory vetting. All in the pursuit of the partisan political promise of a permanent majority.
He’s promised his supporters employment, free health care, peace on earth, nuclear disarmament, cradle to grave welfare and total transparency. They were offered a carrot and will get nothing but a painted stick. Instead of Hope and Change there be get poverty, death panels, war, and package of ramen noodles for their troubles. Winston Churchill warned an earlier generation of political opportunists that the devil rarely keeps his bargain. “You were given the choice between war and dishonor. You chose dishonor and you will have war.”
But by then it was too late. Those who are too smart to learn from their mistakes don’t.
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