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Belmont Club

“We Lied”

March 9th, 2013 - 3:43 pm

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.

The Three Conjectures at Amazon Kindle for $1.99

Storming the Castle at Amazon Kindle for $3.99

No Way In at Amazon Kindle $8.95, print $9.99

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All Comments   (24)
All Comments   (24)
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Those who are too smart to learn from their mistakes don’t.

Should be:

'Those who think they are too smart do not learn from their mistakes.'

Fixed it for ya'.

Hubris shall deliver it's bill all too soon.
1 year ago
1 year ago Link To Comment
Not addressed are non-citizens on US soil as targets.

Can the drones read Green cards and student visas?

Is your au pair fair game?
1 year ago
1 year ago Link To Comment
Obama's modus poperandi has been to threaten to hold his breath until he turns blue unless we do what he wants. Any good parent knows the solution is to simply ignore him and go on about your business. This morning Paul ryan was on fox news sunday explaining how the Budget committee is preparing a budget, incorporating the tax increase of the fiscal Cliff and the budget cuts of sequestration, that will lead to a balanced budget in the forseeable future, whie growing spending at about 3% per year.

With Obama silent, Ryan OWNS the debate. And, as is his wont, Obama, and then the Senate, ultimately will "lead from behind" by agreeing with the Ryan Budget Plan.

Reagan said it was amazing what you can get done if you don't care who gets the credit. So maybe Ryan ought to call his plan "The 2013 Balanced Approach Budget Plan"! That will force Obama's hand, the Republicans are giving him what he asked for, a "balanced approach".
1 year ago
1 year ago Link To Comment
Richard, two things you point out:

"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"

and, "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"

This is really the root of the problem. The MSM has not only biased the news, they have knowingly misinformed the public so their man would be elected. You could probably delve even further and look at academia as well as for poisoning the well, but the immediate problem is how to deal with a treasonous MSM?

What do you do when the NY Times knowingly publish national security secrets (e.g. how terrorists wired money via SWIFT, or how we were tracking them using cell phones, etc.,)? In my mind, going after journalists is like going after crack dealers in the street and allowing the main drug producers to roam free.

I believe we need to make it clear that there are consequences to harming the US by going after the senior editors and owners where it hurst most - their money. Take it all away from them. The question is how to wage this battle?

Republicans don't seem to see where the real fight is. Instead, we have the like of McCain and Lindsey who are too squeamish. We need a Richelieu who understands the stakes and has a long term view for this campaign
1 year ago
1 year ago Link To Comment
S-M-T: "This is really the root of the problem. The MSM has not only biased the news, they have knowingly misinformed the public so their man would be elected."

Exactly. Until Republican candidates confront this problem head-on, our side will never gain real traction. Here is an excerpt from last week's interview of the Romney's by Chris Wallace on Fox.

WALLACE: All right, what about the media?

ANN ROMNEY: I'm happy to blame the media.

WALLACE: Do you think the media was in the tank for Barack Obama?

ANN ROMNEY: I think that it's -- anytime you're running for office, you always think that you're being portrayed unfairly.
And, you know, we -- of course, on our side believe that there's more bias in favor of the other side. I think that that's a pretty universal -- universally-felt opinion. [end excerpt from interview]

There is the problem in a nutshell. The Romney's are given a softball question that would allow them to educate the public about MSM bias and they choose to deflect it rather than hit it out of the park.

Hey Ann, next time you're asked that question, try this instead: "Everyone needs to understand that MSM acts as an agent for the left wing of the Democrat Party. We failed to make that point during the campaign and it cost us dearly. No Republican candidate in the future should make the same mistake."
1 year ago
1 year ago Link To Comment
The Dear Leader has tried to make formerly covert means into public proof that he has fortitude and a policy where none exists. Hence, due process raises its inconvenient head. In addition, having dragged the formerly covert drone into the public arena, his idiot sidekicks regard it, and supportive covert intelligence methods as well, as suitable for domestic use. They have lost their bearings and were not very good at this to begin with.

In terms of what policy does one explain the public disqualification of the Fort Hood casualties from the Purple Heart because the casualties were not the result of enemy action, while sanctioning a drone attack to kill the person who inspired the action? And all relevant actors are/were US citizens. The answer apparently is that in the public political arena we dare not name the enemy as militant islamics, but we can and do name, and kill, the enemy in the covert arena. If the "covert" is now public, then it is subject to the same standards. Meanwhile, the public pretrial of the actual shooter at Fort Hood drags on into its fourth year laboriously assuring that not the slightest procedural right is impinged.
1 year ago
1 year ago Link To Comment
A rather obvious admonition: Live by the drone, die by the drone.
1 year ago
1 year ago Link To Comment
From your keyboard to God's monitor.
1 year ago
1 year ago Link To Comment
Are we by reading and commenting on the BC "engaged in combat?" Who decides what words mean in Wonderland?

The LoFo Flounder gets the message, "You trusted us."
1 year ago
1 year ago Link To Comment
What is the intrinsic difference between the Obama administration's drone policy and the Star Chamber?
1 year ago
1 year ago Link To Comment
Decades ago the thought began to sink into my ravaged brain that - completely aside from the morality of aborting viable fetuses - our society was embracing the idea that all we have to do is use DIFFERENT WORDS to describe a dilemma, and - WHOOF-BANG - problem goes away. The universe is somehow obliged to shift itself into accord with OUR new way of defining it.

Well, folks, it doesn't work.

Eventually, the present administration will find that all its cheap magical tricks won't keep the Jihadists from their 1400-year-old objective of a worldwide "Dar-al-Islam." Nor will all their combined chorus of bought "climate scientists" make the weather dance to their tune. Nor will the trilliontrillion zeros of a thousand assouplissements quantitatifs make it possible for people without detectable skills or motivation miraculously to become productive. Least of all will demonizing law-abiding citizens make the society or its rulers safe in their beds at night.

During the Second World War, the government of Germany executed some twenty thousands of its own German Citizens for criticizing and resisting their
Führer and his policies. There were hundreds of thousands of civilian informers and monitors reporting to the national police of any murmurs or mutterings of discontent or loss of faith in Adolph. But no amount of punishment, intimidation, bullying, or even murder of his subjects protected the Great Father of the Reich from reality crashing down upon him.

Ozymandias slips and slithers to his ignominious fate, grasping ineffectually at chimerical controls, while multiplying legions of rats gnaw at the bindings of his armor.
1 year ago
1 year ago Link To Comment
"Amid a growing debate over U.S. policies for using drones, the Air Force has reportedly reversed its policy of sharing the number of drone strikes in Afghanistan and erased previously published statistics from its website"-Fox News
1 year ago
1 year ago Link To Comment
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