Monday, June 20, 2011

Obama and His Lawyers

What are we to make of Obama’s reported rejection of the legal advice of his own Attorney General, the General Counsel of the Defense Department and Office of Legal Counsel (“OLC”) regarding his responsibility under the plain meaning of the War Powers Resolution to get congressional approval for the military operation in Libya?  Glenn Greenwald reminds us that there’s an impressive recent precedent that came out the other way:
"In 2004, Deputy Assistant Attorney General James Comey, Attorney General John Ashcroft, the OLC and the Director of the FBI advised George Bush that a domestic surveillance program in place since 2001 was illegal. Other lawyers in the Bush administration, like White House Counsel Alberto Gonzales and David Addington disagreed. Faced with a credible threat of mass resignations by his senior legal advisers, Bush capitulated:

"Comey explained that, in 2004, shortly after he became Deputy AG, he reviewed the NSA eavesdropping program Bush had ordered back in 2001 and concluded it was illegal. Other top administration lawyers -- including Attorney General John Ashcroft and OLC Chief Jack Goldsmith -- agreed with Comey, and told the White House they would no longer certify the program's legality. It was then that Bush dispatched Gonzales and Andy Card to Ashcroft's hospital room to try to extract an approval from the very sick Attorney General, but, from his sickbed, Ashcroft refused to overrule Comey.

"Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney's top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush -- wanting to avoid that kind of scandal in an election year -- agreed to "re-fashion" the program into something those DOJ lawyers could approve "
The contrasts Greenwald draws between the Bush and Obama administrations in this connection are indeed impressive:  at the end of the day Bush wasn’t, and Obama is, prepared to ignore the legal advice of his top lawyers, and the Bush lawyers were, and the Obama lawyers apparently aren’t, ready to resign in protest at being overruled.  But it seems to me that Greenwald is being too kind.  There's a much more telling contrast between the conduct of the Bush and Obama administrations in these comparable episodes.

Bush contemplated overruling his top lawyers because he was trying to adjudicate a conflict between urgent presidential duties. He had a duty, on the one hand, to see that the laws were faithfully executed, including congressional domestic surveillance statutes.  On the other hand, it was his job as commander-in-chief to secure the nation against terrorist attacks.  Lawyers within his administration were disagreeing over which solemn presidential duty was more urgent under the circumstances presented by 9/11.  Say what you will about the Bush administration’s theory of executive power, but it explained why some, but not all, Bush lawyers thought the president's commander-in-chief duties took precedence when it came to post-9/11 domestic surveillance.

Can you think of countervailing considerations of comparable magnitude that are moving Obama to the implausible legal conclusion that dropping ordnance on Libyans doesn’t fall within the meaning of “hostilities” under the War Powers Resolution?   He’s already admitted that, however advisable undertaking the Libya operation may otherwise be, there’s no overriding national security interest at stake.  And he emphatically isn’t saying, along with every other president from Nixon to W. Bush, that the War Powers Resolution is an unconstitutional congressional usurpation of presidential power. 

As far as I can see, Obama’s circumventing the plain meaning of the War Powers Resolution to avoid having to explain to Congress and the nation at large exactly what he’s trying to accomplish in Libya and what he's willing to do to that end.  That's understandable in light of the fact that, whatever it is, it's probably not encompassed by the humanitarian rationale he offered the nation soon after the Libyan operation commenced and the authorizing resolution of the U.N. Security Council.  Unless I'm missing something, Obama's shirking his duty to execute the law faithfully to spare himself political inconvenience. 

Would someone explain to me why that isn’t disgraceful?


Anonymous said...

You won't get any replies to your question because it is disgraceful. Obama won't seek approval because he can't explain himself. He can't explain himself because he has no foreign policy and can't find smart enough people apparently to help him articulate one.

Boy is he making a big mistake here. Can you say "primary challenge?"

Anonymous said...

This "Kinetic humanitarian puppies hey look over there quest with possible light "action"" event in the country formerly known as Libya, has been extremely useful to me personally. Instantly I can sift liberals from leftards.

Tim said...

Obama's problem is that he can't get congressional support for the Libya mission that would satisfy the French and the Brits by including regime change and stay within the confines of the U.N. resolution which merely authorizes the protection of civilians. The game of statutory interpretation he's playing is the only way he has not to acknowledge that contradiction.

Anonymous said...

Interesting comment by Tim. But I'm wondering --if what Tim says is true, shouldn't this give us pause? Shouldn't we have a president who can have a statutory interpretation that isn't contradictory, a foreign policy that he doesn't have to hide or run from? A foreign policy that can be explained so that one can agree or disagree, but at least understand what it is?

Obama is not up to the challenge of the US presidency.

Dave said...

The Atlantic addressed this exact issue, trying to identify a contrast between Bush's and Obama's legal machinations that would be compelling enough to defend Obama's actions. They didn't succeed.