Congress, Constitutional Law

Obama Throws OLC Under the Bus

-Submitted by David Drumm (Nal), Guest Blogger

In a remarkably rare event, President Obama has chosen to reject the legal opinion of the Office of Legal Counsel (OLC) on the subject of his responsibilities with respect to the War Powers Resolution (WPR).

In the opinion of the OLC, President Obama would have to terminate or scale back operations against Libya or seek Congressional approval. Obama accepted the analysis of the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh, who argued that the United States needed no permission from Congress to continue operations.

The core function of the OLC is to provide clear, accurate, thoroughly researched, and soundly reasoned legal advice to the Executive Branch. The OLC mission is to “give candid, independent, and principled advice — even when that advice is inconsistent with the aims of policymakers.”

The President is under no legal or Constitutional obligation to adopt the analysis of the OLC. However, the OLC’s procedures are designed to avoid the cherry-picking of legal advice that has occurred here. President Obama simply side-stepped the OLC.

President George W. Bush had a different modus operandi when it came to dealing with the OLC. When Bush sought legal justification for his torture program, he found a small group of lawyers at the OLC, headed by John Yoo, who gave Bush the advice he wanted. This short-circuited the usual process by which the OLC canvasses the Executive Branch for various opinions and forms an independent analysis.

President Obama has undermined the OLC as a honest broker of legal opinions. The Department of Justice lost its cachet of independence and non-partisanship when it was treated as just another political tool during the Bush administration. The Obama administration has rendered the OLC irrelevant.

The OLC has not had a leader since 2003, when Jack Goldsmith resigned. Dawn Johnsen, the first Obama nomination, withdrew after Republicans refused to allow a confirmation vote. The latest nomination to be the Assistant Attorney General for the Office of Legal Counsel is D.C. lawyer, Virginia A. Seitz. The person selected to fill that position is going to require more than the ability to generate premier legal scholarship, it’s going to require a strong and assertive personality.

Update: Glenn Greenwald recalls a similar episode:

Just imagine if George Bush had waged a war that his own Attorney General, OLC Chief, and DoD General Counsel all insisted was illegal (and did so by pointing to the fact that his White House counsel Alberto Gonzales and a legal adviser at State agreed with him).  One need not imagine this, though, because there is very telling actual parallel to this lawless episode:

…

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, …

H/T: Balkinization, Charlie Savage.

72 thoughts on “Obama Throws OLC Under the Bus”

  3. You can ignore BVM. He has a phony website which purports to involve the music business. However, it has no address, no telephone number and no names of any actual persons involved in the enterprise. It has no fictitious name registration, no assets that are identifiable, and lists not a single project or music production it has ever completed. But it does solicit “donations” for its important commitment to “truth.” In other words, BVM is a phony who hustles money from people to support his conspiracy theories. I have requested his identification on more than one occasion, but he won’t even acknowledge those requests. His posts should be entirely disregarded.

  4. This is by Glenn Greenwald. It pretty much matches thoughts by lottakatz, rafflaw and puzzling: “Glenn Greenwald
    Monday, Jun 20, 2011 09:21 ET
    “Sen. Lindsey Graham, yesterday, Meet the Press, to those questioning the war in Libya:

    Congress should sort of shut up and not empower Qadhafi.

    Sen. John Kerry, May 8, 2011, Face the Nation, to those questioning what happened during the bin Laden killing:

    We need to shut up and move on about, you know, the realities of what happened in that building.

    Bill Kristol, February 21, 2007, Fox News Sunday, to those questioning the “surge” in Iraq

    It’s so irresponsible that they can’t be quiet for six or nine months and say the president has made a decision. . . .so let’s give it a chance to work.

    Joe Lieberman, December 7, 2005, Senate floor, to Iraq War critics:

    It’s time for Democrats who distrust President Bush to acknowledge that he will be the commander in chief for three more critical years and that in matters of war we undermine presidential credibility at our nation’s peril.

    _________

    These demands that the nation’s continuous use of war and violence not even be questioned are easy to understand. The nature of being an empire entails not only ruling the world through force, but also ensuring that the Emporer’s decrees and actions cannot be meaningfully challenged at home. That’s why the controversy over Obama’s refusal to seek Congressional approval for the war in Libya matters: this is an unpopular war, and requiring him to obtain approval preserves at least some residual democratic process — not just for this war but also future ones.

    Beyond the desire to render democratic opinion irrelevant, there is another, more specific reason why war advocates so frequently insist that critics should “shut up”: because the policies they are implementing are so ludicrous and indefensible and redound to the benefit of a tiny sliver of the population. They can’t be sustained if there is debate and examination over them.

    Today, The New York Times describes the “growth market” for drones: at a time when Washington conspires to reduce basic entitlements based on alarmist warnings over the deficit, “the Pentagon has asked Congress for nearly $5 billion for drones next year” — that includes dramatic increases in the number, types and uses of those weapons. The NYT says this “explosion” is “transforming the way America fights and thinks about its wars”: note how the notion that the U.S. fights multiple “wars” at all times is just a given. In particular, the NYT correctly notes that the proliferation of drones will also certainly make wars more likely, given the perception that they are cost-free (at least to Americans, but not, of course, to the increasing number of countries bombed by sky robots). That is another reason to care about the debate over Libya: if Obama succeeds in entrenching the notion that drone attacks are not “wars” or even “hostilities,” he and future presidents will be able to bomb other countries with even fewer constraints than they have now.

    This state of Endless War continues despite the fact that, as a new poll shows, 72% of Americans believe the U.S. is fighting too many wars. The poll itself is revealingly amusing: in what other country could that question — are we fighting too many wars? — even be meaningfully asked? It’s also striking that almost 3 out of 4 Americans — not exactly renown around the world for being war-shy — believe the U.S. is fighting too many wars given that their country is ruled by a recent Nobel Peace Prize winner.

    But what is shown by the results of that poll is that the war policies which America’s political elites shield from public debate are extremely and increasingly unpopular. Indeed, a recent Pew poll revealed that there are roughly equal majorities across the ideological spectrum in favor of greater “isolationism” and a “reduction of overseas military commitments.” Yet the political class and the private National Security State which unimaginably profit from these wars are able to propagate those policies with no end in sight; a NYT article this morning about efforts this week t0 restrict spending for the Libya War provide a glimpse into how that is managed:

    Any measures to end or reduce financing for the military’s involvement in the NATO-led airstrikes in Libya are likely to divide members of Congress. They are split in both the House and Senate between two slightly incongruous alliances: antiwar Democrats and Republicans who are angry about the usurping of Congressional authority, and Democrats who do not wish to go against the president, joined by hawkish Republicans who strongly support America’s role in Libya.

    As is true for the war in Afghanistan and Obama’s Bush-Cheney-mimicking Terrorism policies, this is the coalition that serves as the Democratic President’s key allies: partisan loyalists unwilling to contradict their party’s President no matter what he does, and “hawkish” Republicans who are always pro-war and eager to live under an unrestrained Executive. That is the faction that serves the private defense industry, enables Obama to do what he wants in these realms, and shields these policies from examination. But the linchpin of those efforts is to ensure that public opinion remains irrelevant in deciding when, why and how often America wages war. These “shut up” moments are unusual only in that they are candid expressions of that pervasive mindset.”

    * * * * *

    Sen. Lindsey Graham, yesterday, Meet the Press, to those questioning the war in Libya:

    Congress should sort of shut up and not empower Qadhafi.

    Sen. John Kerry, May 8, 2011, Face the Nation, to those questioning what happened during the bin Laden killing:

    We need to shut up and move on about, you know, the realities of what happened in that building.

    Bill Kristol, February 21, 2007, Fox News Sunday, to those questioning the “surge” in Iraq

    It’s so irresponsible that they can’t be quiet for six or nine months and say the president has made a decision. . . .so let’s give it a chance to work.

    Joe Lieberman, December 7, 2005, Senate floor, to Iraq War critics:

    It’s time for Democrats who distrust President Bush to acknowledge that he will be the commander in chief for three more critical years and that in matters of war we undermine presidential credibility at our nation’s peril.

    _________

    These demands that the nation’s continuous use of war and violence not even be questioned are easy to understand. The nature of being an empire entails not only ruling the world through force, but also ensuring that the Emporer’s decrees and actions cannot be meaningfully challenged at home. That’s why the controversy over Obama’s refusal to seek Congressional approval for the war in Libya matters: this is an unpopular war, and requiring him to obtain approval preserves at least some residual democratic process — not just for this war but also future ones.

    Beyond the desire to render democratic opinion irrelevant, there is another, more specific reason why war advocates so frequently insist that critics should “shut up”: because the policies they are implementing are so ludicrous and indefensible and redound to the benefit of a tiny sliver of the population. They can’t be sustained if there is debate and examination over them.

    Today, The New York Times describes the “growth market” for drones: at a time when Washington conspires to reduce basic entitlements based on alarmist warnings over the deficit, “the Pentagon has asked Congress for nearly $5 billion for drones next year” — that includes dramatic increases in the number, types and uses of those weapons. The NYT says this “explosion” is “transforming the way America fights and thinks about its wars”: note how the notion that the U.S. fights multiple “wars” at all times is just a given. In particular, the NYT correctly notes that the proliferation of drones will also certainly make wars more likely, given the perception that they are cost-free (at least to Americans, but not, of course, to the increasing number of countries bombed by sky robots). That is another reason to care about the debate over Libya: if Obama succeeds in entrenching the notion that drone attacks are not “wars” or even “hostilities,” he and future presidents will be able to bomb other countries with even fewer constraints than they have now.

    This state of Endless War continues despite the fact that, as a new poll shows, 72% of Americans believe the U.S. is fighting too many wars. The poll itself is revealingly amusing: in what other country could that question — are we fighting too many wars? — even be meaningfully asked? It’s also striking that almost 3 out of 4 Americans — not exactly renown around the world for being war-shy — believe the U.S. is fighting too many wars given that their country is ruled by a recent Nobel Peace Prize winner.

    But what is shown by the results of that poll is that the war policies which America’s political elites shield from public debate are extremely and increasingly unpopular. Indeed, a recent Pew poll revealed that there are roughly equal majorities across the ideological spectrum in favor of greater “isolationism” and a “reduction of overseas military commitments.” Yet the political class and the private National Security State which unimaginably profit from these wars are able to propagate those policies with no end in sight; a NYT article this morning about efforts this week t0 restrict spending for the Libya War provide a glimpse into how that is managed:

    Any measures to end or reduce financing for the military’s involvement in the NATO-led airstrikes in Libya are likely to divide members of Congress. They are split in both the House and Senate between two slightly incongruous alliances: antiwar Democrats and Republicans who are angry about the usurping of Congressional authority, and Democrats who do not wish to go against the president, joined by hawkish Republicans who strongly support America’s role in Libya.

    As is true for the war in Afghanistan and Obama’s Bush-Cheney-mimicking Terrorism policies, this is the coalition that serves as the Democratic President’s key allies: partisan loyalists unwilling to contradict their party’s President no matter what he does, and “hawkish” Republicans who are always pro-war and eager to live under an unrestrained Executive. That is the faction that serves the private defense industry, enables Obama to do what he wan

  7. Jill,

    As I was saying before the vulture BVM swept in…

    Heading off to work — will take a look at the Engelhardt piece later today. Thanks for posting it. Re: the title, “It Just Couldn’t Be Uglier: Annals of the War on Terror”, I’d have to agree — the title is apt. I never could have imagined the things that are taking place… and I’m referring to the things that are going on covertly. Most good and decent Americans are, sadly, still in the dark… They deserve to know the truth.

    BVM: I don’t often bother, but… you’re a menace:

  9. Jill,

    Heading off to work — will take a look at the Engelhardt piece later today. Thanks for posting it. Re: the title, “It Just Couldn’t Be Uglier: Annals of the War on Terror”, I’d have to agree — the title is apt. I never could have imagined the things that are taking place… and I’m referring to the things that are going on covertly. Most good and decent Americans are, sadly, still in the dark… They deserve to know the truth.

  10. anon nurse,

    Here is more information: “It Just Couldn’t Be Uglier: Annals of the War on Terror
    by Tom Engelhardt

    Every time we get a peek inside Washington’s war on terror, it just couldn’t be uglier. Last week, three little home-grown nightmares from that “war” caught my attention. One you could hardly miss. On the front page of the New York Times, Glenn Carle, a
    former CIA official, claimed that the Bush administration had wanted “to get” Juan Cole, whose Informed Comment blog devastatingly critiqued the invasion and occupation of Iraq (and who writes regularly for TomDispatch). Not only that, administration officials called on the CIA to dig up the dirt on him.

    Keep in mind that, though the Times quotes “experts” as saying “it might not be unlawful for the C.I.A. to provide the White House with open source material [on Cole],” that just shows you where “expertise” has gone in the post-9/11 world. Since the Watergate era, the CIA has been prohibited from domestic spying, putting American citizens off-limits. Period. Of course, been there, done that, right?

    In case you think taking down Cole was just a matter of the bad old days of the Bush administration, note that the journalist who revealed this little shocker, James Risen, is being hounded by the Obama administration. He’s been subpoenaed by federal authorities to testify against a CIA agent accused of leaking information to him (on a bungled CIA plan to sabotage Iran’s nuclear program) for his book State of War. It’s worth remembering that no administration, not even Bush’s, has been fiercer than Obama’s in going after government whistle blowers.

    In the meantime, in case you didn’t think American law enforcement could sink much lower while investigating “terrorist activity” and generally keeping an eye on Americans, think again. According to Charlie Savage of the Times, a revised FBI operational manual offers its 14,000 agents new leeway in “searching databases,” using “surveillance teams to scrutinize the lives of people who have attracted their attention,” and “going through household trash.” Yes, that’s right, if you see somebody at the dumpster out back, it may not be a homeless person but an FBI agent.

    And then there was Peter Wallsten’s account in the Washington Post of a nationwide FBI investigation of “prominent peace activists and politically active labor organizers.” According to Wallsten, news leaking out about it hasn’t sat so well with union supporters of President Obama (or, for all we know, with the president himself), since “targets” include “Chicagoans who crossed paths with Obama when he was a young state senator and some who have been active in labor unions that supported his political rise.” All are (shades of Cole in the Bush years) “vocal and visible critics of U.S. foreign policy in the Middle East and South America.”

    Strange are the ways of the American national surveillance state. And lest you think these are simply minor aberrations, consider what Karen J. Greenberg, author of The Least Worst Place: Guantanamo’s First One Hundred Days, points out in her latest post, “Business as Usual on Steroids”: in the wake of Osama bin Laden’s death, there is to be no relief. The Obama administration is instead doubling down on the war on terror.

  11. “I realize what I am describing here may sound like a conspiracy but there is nothing untrue about any of it. All can be verified, even in the MSM.” -Jill

    Jill is right about this… And, as we know, some “conspiracies” turn out to be the real deal.

    http://www.nytimes.com/2011/06/18/us/politics/18leak.html

    U.S. Pressing Its Crackdown Against Leaks
    By SCOTT SHANE
    Published: June 17, 2011

    WASHINGTON — Stephen J. Kim, an arms expert who immigrated from South Korea as a child, spent a decade briefing top government officials on the dangers posed by North Korea. Then last August he was charged with violating the Espionage Act — not by aiding some foreign adversary, but by revealing classified information to a Fox News reporter.

    Stephen Kim, an arms expert, is accused of violating the Espionage Act by giving classified information to a reporter.

    Mr. Kim’s case is next in line in the Obama administration’s unprecedented crackdown on leaks, after the crumbling last week of the case against a former National Security Agency official, Thomas A. Drake. Accused of giving secrets to The Baltimore Sun, Mr. Drake pleaded guilty to a minor charge and will serve no prison time and pay no fine. (end excerpt)

  12. Puzzling,

    I think our Constitution has almost been made null and void. We have a mass accretion of power in the executive with the complicity of Congress. Various lower level judiciary members have and continue to rule in favor of our Constitution only to be overruled by the higher courts in too many cases.

    We have in fact seen both the infiltration of peace groups and their harassment/arrest/confiscation of goods. We have seen an incredible crackdown on whistleblowers. I realize what I am describing here may sound like a conspiracy but there is nothing untrue about any of it. All can be verified, even in the MSM.

    Lottakatz is correct about all the missing money. In fact, there are multiple incidents of amazing amounts of cash simply being “disappeared”. This cannot happen without willing complicity at the highest level of govt. This is also true of weapons which show up around the world in the hands of the US’s declared friends and enemies alike. Arming every side of a conflict seems to be the norm. I’m certain it is quite the money maker.

    This is why I believe we citizens must resist. I do not now nor have I ever advocated violent resistance but we must peacefully resist. I do not support our wars. I do not support the stripping of civil liberties. I do not support the destruction of the rule of law. I do not support the impoverishment of our population. I do not support the degradation of the environment. All these things are supported by the govt. Therefore to me it is important to take a stand on behalf of what I hold dear; a relation of justice between the people and the govt., between the US and other nations and between human beings and the earth.

  13. BVM, off your meds, I see. Does anyone at the asylum know you are missing?

  15. During the trial of the Nazis at Nuremberg, the chief American prosecutor, Robert H. Jackson, stated: “To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

    A beginning in identifying some of the war criminals:

    http://www.BuenaVistaMall.com/Supreme.htm

  16. The Fascist Shift happened years ago and evolved into Nazism.

    Wars of Aggression:
    The Nazis attacked Poland, France, Russia, etc.
    The U.S. Nazi Government attacked Iraq, Afghanistan, Pakistan, Libya, Yemen, etc.

    The U.S. Government has violated the same law used to prosecute and convict the Nazis at the Nuremberg Trials in 1945-1949. They hanged most of those Nazis.

    We do not support the death penalty.

    The U.S. Government = Nazis
    Washington DC = Nazi Berlin

  17. Lottakatz-

    When you show film of pallets of shrink-wrapped $100 bills being unloaded from an airplane by a fork lift, isn’t that an invitation to steal it? It couldn’t be made any easier. You might want to start the questioning with Achmed Chalabi and Jerry Bremer, the “American Viceroy” who stupidly disbanded the Iraqi Army and outlawed the Baath Party, instantly creating the Iraqi insurgency and all the carnage that followed.

  18. Jill , “Lottakatz, … Many Congress members benefit in exactly the way you describe. Unfortunately there is more money in war business than even the oil business.”

    —
    War is big business for everybody in startlingly flagrant ways. I am not a particularly larcenous person but I know that much money doesn’t disappear without inside help- everybody gets a healthy cut. You just gotta’ wonder where some of that money went and what it paid for somewhere down the line.

    http://www.rawstory.com/rs/2011/06/19/missing-iraq-money-may-be-as-much-as-18-billion/

    “Missing Iraq money may be as much as $18 billion

    …. The Iraqi government argues that U.S. forces were supposed to safeguard the cash under a 2004 agreement, making Washington responsible for the money’s disappearance. Pentagon officials claim that given time to track down the records they can account for all of the money, but the U.S. has already audited the money three times and no trace of what happened to it can be found.”

  19. Jill,

    Here’s five minutes of Bruce Fein commenting on abuses of executive power in 2008. He could use this verbatim today, though some aspects have worsened:

    http://www.youtube.com/watch?v=80IphtHrFzg

    I suspect you are right about the federal government creating the ability to pivot from international terrorism (real and imagined) to focus state power on the domestic population, perhaps leading with anti-war groups who will be claimed to be inclined to domestic terrorism. Surveillance and control of the Internet will be a vital component in such a scenario, and I would expect to see continued efforts to heavily monitor and regulate.

    What will all of this lead to?

    Will the Republic effectively be overthrown by an Executive in the future?
    Is this just another checkbox in a fascist shift that Naomi Klein has asserted?
    Or is this as quaint as the Executive creating the capability to use wars to distract from political exigencies at the time of re-election?

  20. Since this article has already been hijacked by one of the participants in “Computer Access Night” at the lunatic asylum, I will also go off topic for a moment and remind anyone interested that “Countdown With Keith Olbermann” begins on Current TV Monday evening at 8 P.M. Eastern. It is rerun at 2 or 3 hour intervals during the night and through the following day, so you can pretty much watch it according to your own schedule.
    I remember when people used to have the delusion of being Napoleon Bonaparte. This is the first time I have heard of anyone having the delusion of being a shopping mall. That must be a real challenge for modern psychiatry.

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