Monday, June 20, 2011

Obama Takes Imperial Presidency Beyond Bush/Cheney's Wildest Dreams

Although I did not vote for Obama, I hoped he would live up to his campaign rhetoric and roll back some of the worst excesses of the expansive Bush/Cheney re-definition of the Unitary Executive. After the election I looked forward to the restoration of some of the civil liberties lost in the nation's post 9/11 fervor for an illusory level of security from terrorism and a re-balancing of the constitutional checks on the war-making authority of the executive branch. These hopes were dashed as time and again the Obama administration embraced and defended every single aspect of the Bush/Cheney power grab.

Now, having committed U.S. military forces and weaponry to striking military targets in the Libyan not-a-war, the President has chosen to ignore the legal advice of the top lawyers in the Pentagon and Justice department - claiming his actions are exempt from the War Powers Resolution:
"Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20. But 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."
We are well on our way to spending over a billion dollars deploying carrier attack groups and launching air strikes and cruise missile bombardments of military targets in a foreign country, yet our President is making the Orwellian claim that this action does not yet meet the definition of "hostilities".

This is what it has come to - We now have a President who is asserting that it is completely within his authority to commit our military resources to strikes against another country, and never be required to request the authority of Congress. This is claim of executive war power far beyond anything that was ever asserted in the Bush/Cheney administration. Regardless of whether you support our actions in Libya, all Americans should be concerned and outraged by this claim. It is nothing less than a subversion of the law and the Constitution.

Sometimes, when a politician is criticized by both the right and left for a compromise policy decision, they will justifiably point to the criticism as a validation of a centrist policy. This is not such a case, as the President has staked out a war-making claim somewhere to the right of anything ever asserted by the Bush/Cheney administration.

Partisan hypocrisy can be easily seen in both Republicans and Democrats criticizing Obama while defending Bush or vice versa. The charges of hypocrisy are correct but irrelevant. The policy and administration claims are wrong and dangerous. It is important to understand the serious charges being levied from both wings of the political spectrum.

Criticism from the right:

Obama is flouting the War Powers Resolution
John Yoo & Robert Delahunty
"When an administration speaks to serious legal and constitutional issues, most of all perhaps in the national security area, it should not be such a spendthrift of its limited capital. And indeed, the failing here is a signature trait of this administration. Obama has an unhappy knack of making exactly the wrong kind of compromises. In this case, he might have made a robust and plausible claim that the WPR is unconstitutional. Alternatively, he might have read the statute fairly and followed it as written. Instead he is clearly flouting the law — but claiming that he isn’t. His performance here mirrors everything that has been wrong with his entire adventure in Libya. Obama’s attack has been too feeble to bring down Gaddafi, but big enough to discredit us for trying and failing; too wrapped up in U.N. legalities, but too little concern over national interests."
Criticism from the left:

Obama rejects top lawyers' legal views on Libya
Glenn Greenwald
"It should go without saying that even if the GOP had refused to support the war, that would not remotely be an excuse for violating the law and waging it without Congressional approval. Obviously, the law (and the Constitution) does not require Congressional approval for wars only where Congress favors the wars, but in all instances (it should also go without saying that a belief in the morality of this war is not an excuse for waging it illegally, any more than Bush followers' claims that warrantless eavesdropping and torture were beneficial excused their illegality). All that aside, 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."
When an administration policy is criticized from the right, left, and academia as an illegal action, usurpation of congressional authority, and an erosion of constitutional checks and balances, it does not mean that the administration is striking a good compromise between the right and left.

In this case it means that U.S. participation in the hostilities in Libya are being conducted as an illegal action, usurpation of congressional authority, and an erosion of constitutional checks and balances.

Divided and Balanced.™
Now that is fair.

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