Going Astray – Obama and Nato Bombings in Libya

EW and probably bmaz as well will likely have more to say on this one when they free up.

Charlie Savage reported on Friday that Obama rejected advice from both Jeh Johnson (Pentagon general counsel) and, even more significantly, Caroline Krass (the acting head of DOJ’s Office of Legal Counsel) when he availed to himself the power to continue bombings and killings in Libya, under the assertion that he’s, well, he’s just not being all that hostile in his bombing campaign.

Like Nixon in Cambodia, Obama did find supporters for his decisions about Libya. Ex-Yale Dean, current assassination proponent, Harold Koh (legal advisor for the State Department) apparently assured Obama that the bombings just do not rise to the level of being “hostilities” for which Obama needs Congressional permission. Robert Bauer, Obama’s White House counsel, reportedly provided his own version “yeah buddy” for Obama.

Just as Bush found it convenient to get his White House Counsel, Alberto Gonzales, to opine that as long as Bush designated his torture victims as being “illegal enemy combatants” (whatever the ultimate facts) he was exempt from war crimes prosecutions, Obama’s White House counsel is equally eager to tell Obama that, as long as he doesn’t call them “hostilities,” Obama can bomb any nation for any period of time.   

Most importantly – all of this is being done in derogation of the Office of Legal Counsel opinion that the President has exceeded his authority.   At issue, according to White House Spokesman Eric Shultz (Dan Pfeiffer was tied up) isn’t the very same, age old, typical power grab of any unchecked sovereign, but instead the age of the War Powers resoluton.

“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”

The Obama theory is that with 10 years of Bush-Obama battering of the psyches and vocabularies of of Americans and with some very dedicated government propaganda processes to boot, the meaning of the term “hostilities” has changed to exclude American or American led NATO bombings.  And this is “ordinary and healthy.”

Apparently the words “ordinary” and “healthy” have changed some over the last 40 years as well. For those civilian residents in Tripoli who were killed or maimed by NATO’s bombing run today, there is no translation dictionary or program current enough to convert their descriptions of the outcome of the NATO bombing into the words “ordinary” and “healthy.”  NATO provided an assist though – what happened wasn’t a bombing of civilians, but rather a strike on an unintended target. 

“[I]t appears that one weapon did not strike the intended target and that there may have been a weapons system failure which may have caused a number of civilian casualties.”

Cue up Obama’s spox to explain to us how words like “civilian casualties” have also changed a lot over the last few decades – in an ordinary and healthy way.  Maybe they’ll even bring on Henry Kissinger to help with the explanation.   

I don’t completely buy Glenn Greenwald’s take that Bush had “better” lawyers, because [now starts my paraphrase of Glenn’s point] some were prepared to threaten to quit over the NSA program (which they demanded be revised into an equally unconstitutional format) and others were prepared to blindly follow the lead without even knowing anything about why they’d be resigning, still, I will say that Bauer and Koh can easily fill the shoes of Gonzales and Bellinger.

Bush and “torture.” Obama and “hostilities.”  The one thing that we can rely upon is that the meaning of the phrase “Executive Power” has changed over the years. Unchecked, it will continue to change at an ever-increasing rate.  And for those of us who remember Obama’s “stern face” as he promised during primaries and camaigns to “restore the rule of law” we can only wonder when that phrase went so far astray as to encompass the things the Obama administration has done over the last few years. 

53 replies
  1. bobschacht says:

    (After reading)
    Thanks, Mary, for stepping forward while Marcy & bmaz were otherwise occupied.
    This Orwellian usage of words has got to stop. How can we do that?
    I’m hoping that the comedians will employ some ridicule on this misuse of language.

    Bob in AZ

  2. Mary says:

    Bomb it is.

    I don’t know what we can do about the Orwellian use of language other than call them on it, each time, every time.

    The bigger picture than the language is Obama being willing to completely ignore the opinion of Office of Legal Counsel. A lesser picture is that we have the shapers at Harvard, Yale, Boalt Hall, etc. – (not to mention the unremarkables like Pepperdine) who have firmly aligned themselves – and their ex-institutions – with concepts of targeted killings, massive torture programs, concenrated population camps, forever detentions, indiscriminate bombings, etc. as having the weight of legal scholarship, instead of the taint of power run amok.

    It was bad enough watching Bush trot out his crew – pretty disturbing watching them get posts like Goldsmith’s at Harvard, but watching Obama take the deans of the top legal institutions and use them as his beards for torture and assasination has been chilling. He’s even directly put one of his executive power covers directly onto the Supreme Court.

    The silver lining to Obama not getting many judges onto the bench is that his kind of lawyers might do even more damage than loyal Bushies.

    • pdaly says:

      Thanks for the post, Mary.

      The silver lining to Obama not getting many judges onto the bench is that his kind of lawyers might do even more damage than loyal Bushies.

      I’ll concentrate on this good news, because the rest is so depressing. Also, maybe it signifies that there are not enough (yet) lawyers who would think “correctly” to fill those Obama posts.
      I keep wondering what professors today teaching Con Law classes talk about: the Constitution or its immolation…

    • phred says:

      This is one of the things that bothers me the most, that our “top tier” law schools have become havens for criminals to groom converts. That is a very worrying development. Our entire establishment: government, academic institutions, and corporations have turned away from the rule of law en masse, except where it may be applied to persecute the rabble.

      • Mary says:

        “havens for criminals to groom converts”

        You picked the words better than I did – they have more force. I remember how incredibly young (from a standpoint of understanding what it’s like to walk inother shoes) some law students are. Heroes get picked when you have that kind of youth somewhere still in you. What we are giving the ones who will go on to shape courts and politics throughout the country is a horrorshow of evil from which to pick their heroes.

      • eCAHNomics says:

        Law schools have been bought out by corps, just like courts.

        Chicago Law is one of the worst. It’s the former home of Richard Posner and current home of his son Eric. He was on cpan’s in-depth a couple of weeks ago and he’s a really scary character.

        U.S. is well & truly lost.

  3. Neal Deesit says:

    Comedians? Would it be too much to hope that anyone more serious, say a 19th C. logician, be pressed into service?

    ‘I don’t know what you mean by “glory”,’ Alice said.

    Humpty Dumpty smiled contemptuously. ‘Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”‘

    ‘But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.

    ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

    ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

    ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

    Alice was too much puzzled to say anything; so after a minute Humpty Dumpty began again. ‘They’ve a temper, some of them — particularly verbs: they’re the proudest — adjectives you can do anything with, but not verbs — however, I can manage the whole lot of them! Impenetrability! That’s what I say!’

    ‘Would you tell me please,’ said Alice, ‘what that means?’

    ‘Now you talk like a reasonable child,’ said Humpty Dumpty, looking very much pleased. ‘I meant by “impenetrability” that we’ve had enough of that subject, and it would be just as well if you’d mention what you mean to do next, as I suppose you don’t mean to stop here all the rest of your life.’

    ‘That’s a great deal to make one word mean,’ Alice said in a thoughtful tone.

    ‘When I make a word do a lot of work like that,’ said Humpty Dumpty, ‘I always pay it extra.’

    ‘Oh!’ said Alice. She was too much puzzled to make any other remark.

    ‘Ah, you should see ’em come round me of a Saturday night,’ Humpty Dumpty went on, wagging his head gravely from side to side, ‘for to get their wages, you know.’

  4. orionATL says:

    president obama’s problem with libya and war powers is not that he is right or wrong,

    but that he has no mass of supporters anywhere.

    had he those supporters in noisy number, he could have done what bush did with impunity – break international law with respect to illegal conduct of war (“wars of aggression”) and with respect to torture.

    obama has never developed a constituency; he has no strong core of supporters;

    thus he is highly vulnerable to the accusation of exceeding the war powers act.

    an illuminating comparison would be how vulnerable would bush have been had he not had vocal supporters at every step of the way as he slowly, deliberately executed his illegal invasion and illegal occupation of iraq.

    • ottogrendel says:

      Obama, as a brand and Corporatist vehicle, is designed to be an improvement over the crudeness, the bluntness of George W. This more sophisticated appearance of the executive has been a success (no more Cowboy-Mr.-Smith-Goes-to-Washington or “self-defecating” blunders). With this accomplished, the executive is now freer to more directly assume greater executive power. It is such an improvement over the old model that Obama need not worry about creating the pretense of legal support or bother about having a critical mass of supporters among the citizenry behind him. Why else does he bash the “Professional Left” and Progressives? He doesn’t need them and he knows it. His administration is proving that a mandate from the masses is irrelevant. If Obama gets away with this latest expansion of the executive existing above the law–and I’ll bet a year’s salary he will–he doesn’t have to care about political vulnerability. And what power-hungry senior politician in their right mind would try to stop this abuse if in two years they or their party may get their turn to be The Great and Powerful Oz?

      • Mary says:

        He got to appeal as less blunt and verbally inept than Bush, but also with this structured appeal that he was a kind of outsider – not from the background of the rich, not from old CIA circles, not even long in Congress or politics.

        When he first started campaigning, I mostly lost a friend who was backing him when I said that he sounded to me as if he was running on being the conservative compassionate to Bush’s compassionate conservative – just a few rhetorical tweaks.

    • Mary says:

      I think this part:

      “By accusing President Barack Obama of violating the War Powers Resolution, House Republicans are abandoning their party’s longstanding position that the Constitution allows the executive to use force abroad, subject to Congress’s control over funding.”

      of Yoo-r link is pretty interesting. His view is pretty much that Congress doesn’t even has the ability to declare war – just decide wheher or not to fund it, and even that, of course, falls to the Congressional acquiesence in black budgets of a size to fund several small scale wars. Wait wait – no, that’s not what he says, he doesn’t use the word “war” but instead the phrase “use of force.”

      Totally different thing. The graves may look alike, but the “intent” to be forceful, instead of warlike – was clear. Especially given the use of U. S. “warriors” to undertake those non-hostile uses of force.

      I’ve always been sad over the change in the US Soldier’s Creed from:

      “I am an American Soldier.

      I am a member of the United States Army – a protector of the greatest nation on earth …”


      “I am an American Soldier.

      I am a Warrior and a member of a team…”

      and in particular the complete deletion of this part:

      “Because I am proud of the uniform I wear, I will always act in ways creditable to the military service and the nation it is sworn to guard.”

      I guess some words don’t just change in meaning, they disappear.

      • ottogrendel says:

        When a company like BP is worth more than the GDP of a small European country, I suspect the idea of the nation state is out of date and only for Oldthinkers. When this change in the oath occurred, I took it to be a signal of the use of the US military as an even more overt mercenary for corporate interests. This change happened in the same time frame as residents of the US came to be called consumers instead of citizens.

      • orionATL says:

        that change you cite is very disturbing.

        all the more so when i think of my extended family and the numbers of young men and women, a generation or two below me, to whom this will be their pledge.

      • fatster says:

        I had never heard of that Soldier’s Creed, Mary, or at least never paid any attention to me. I learned from here that the original version was post-Viet Nam. Soldiers felt so beaten-up by that war that it’s understandable that the Creed was established. This newest thing (“warrior” – “warrior” – “war” “deploy” – “engage” – “destroy”) apparently came about in 2003. The former certainly had more dignity.

        Thank you for yet one more good piece of information.

  5. radiofreewill says:

    Where’s the bellyfeel for Libya?

    “Consider, for example, such a typical sentence from a Times leading article as “Oldthinkers unbellyfeel Ingsoc.” The shortest rendering one could make of this in Oldspeak would be: “Those whose ideas were formed before the Revolution cannot have a full emotional understanding of the principles of English Socialism.” But this is not an adequate translation…Only a person thoroughly grounded in Ingsoc could appreciate the full force of the word bellyfeel, which implied a blind, enthusiastic, and casual acceptance difficult to imagine today.”

    — Orwell, 1984 Appendix

  6. Mary says:

    Thanks to all for the additional context and links, from Balkin to Humpty Dumpty. and the ever yappy yoo.

    For the hardcore politicos, one other silver lining (or a piece of eleventy dimensional chess as they may try to sell it) is that this has created some dissent among the GOP. McCain and Graham have been doing the rounds as the military lobbyists, trying to make the argument that Obama is useless, worthless and a disgrace in office and yet … we should all rally round to support the Libyan bombing and of course it isn’t something that needs Congressional approval and it’s a bad, bad GOP that would try to interfere.

    Almost funny.


    Meanwhile – I did get a letter back from my Senator over the Patriot Act.

    “Rather than examine what went wrong following the Sept. 11, 2001, terrorist attacks, Congress hastily passed a long-standing wish list of power grabs like warrantless searches and roving wiretaps. The government greatly expanded its own power, ignoring obvious answers in favor of the permanent expansion of a police state.

    My main objection to the PATRIOT Act is that searches that should require a warrant from a judge are performed with a letter from an FBI agent – a national security letter (NSL). Since the passage of the PATRIOT Act, over 200,000 NSL searches have been performed. In addition, the roving wiretaps allow the government to ignore requirements to name the target of the wiretap or the specific place or facility that is to be monitored.

    Though the PATRIOT Act has been extended until 2015, I will continue to work with anyone who has concerns about the law to make changes to protect the privacy and rights of all Americans.

    Unfortunately, that Senator isn’t a Democrat – he’s Rand Paul. I keep thinking about the compare and contrast from letters I used to get from Feinstein & co – all about how they were going to make sure that law enforcement had all the power it wanted.

    Even words like Democrat and Republican and liberal and conservative have developed some really skewed meanings.

    • Fractal says:

      Thank you, Mary. Belated appreciation after commenting over on bmaz’s thread.

      When I saw this

      letters I used to get from Feinstein & co

      I did a mental forehead-smack. Gawd, how long have we been at this fight? Weren’t we being disgusted with DiFi over FISA and Patriot Act years before Obama even got elected?

      • Mary says:

        Yep – and I remember emailing and making campaign contribution and more calls and more emails and … nothing.

  7. Mary says:

    Come to think of it, that Peace Prize makes a lot more sense if the Pulitzer Committee used an Obama lawyer generated definition of “peace.”

  8. 4cdave says:

    You don’t get to be President unless you are someone who seeks power. Then they dangle “unlimited” power in front of you in the form of Executive Power/Privilege. You can do whatever you want, as long as you don’t upset the aristocracy.

    A decent person might still resist. A decent person would not seek, and never win, the Presidency.

    • ottogrendel says:

      “There is a tragic flaw in our precious Constitution, and I don’t know what can be done to fix it. This is it: Only nut cases want to be president.” –Kurt Vonnegut

  9. Twain says:

    The people who want to be in Congress should be looked upon with great suspicion. They are looking for a cushy job for life with all the benefits. They’ll never have to work again.

    • lysias says:

      Election is a flawed way to choose legislators. We should do it the way the ancient Athenians did, choosing them by lot from among all adult citizens. (Because of the limited number of Athenian citizens, they did allow such legislators to serve twice in their lives, although not in consecutive terms. With our population, we could limit everybody to one term.)

  10. ottogrendel says:

    Great summation, Mary, especially your third paragraph (“Just as Bush found it convenient . . .”) and the subjective meaning of words. Indeed, war is peace. The first rule of interpreting political speech is that whatever is said publicly, the opposite is true. So when Obama talked about restoring the rule of law, it was a safe bet that he would do otherwise. And when he talked about change, well . . .

    One improvement, in terms of efficacy, that the US has made over past dictatorial or Fascist/Corporatist states is that it is able to avoid the shortcomings and obviousness that goes with states run by dictators for life by having a “new” executive every four years. This allows the executive to wield the power that comes with at once being the Law yet also existing above it while maintaining a facade that such is not the case thanks to the pretension of elections and a two-party system. It’s a neat, exceptional trick: a little “plausible deniability” in order to keep up the appearance of a free, democratic government and to make it easier to sell war as peace.

  11. Adam503 says:

    Maybe the Nobel Prize Committee will give Obama another Nobel Peace Prize for hostility-free bombing.

    Hey, there’s smileys painted on the drones and the missiles. See!

  12. spanishinquisition says:

    Now that I’ve received my re-education from Obama, now I know that carpet bombing Vietnam and 9/11 weren’t hostile. This Pax Obama is clearly deserving the Nobel Peace Prize he received.

  13. mattcarmody says:

    Not being politically correct at all, I’m just gonna go there – maybe it’s Korean lawyers. Maybe there’s something inherent in the Confucian tradition in Asia that leads people to defer to authority.

    As an aside, after 20 minutes of Countdown this evening, nothing’s changed. Moore saying Obama probably doesn’t mean to lie about what he’s doing, and no one bringing up impeachment, blah-blah-blah, and then came Moulitsas and i switched to Radio Woodstock.

  14. Masoninblue says:

    EPU’ed on Bmaz’s thread @ 109 and reposted here.

    I believe Obama decided to break the law and provoke a constitutional crisis because he is already conducting God-knows-how-many drone bombings and after-midnight JSOC assassinations in God-knows-how-many foreign countries. He intends to conduct and has been conducting these CIA/military operations in absolute secrecy probably without requesting consent from the relevant government. He does not intend to ask permission from Congress before these war-crime operations. Scribe @2 and Fractal @78 made the same point. (References are to comments posted on bmaz’s thread)

    Don’t forget that Kucinich and other members of Congress, including more Republicans than Democrats have sued Obama in federal court to stop him. Therefore, the judiciary is now involved. Regardless of the decision issued by the United States District Court, I believe the loser will appeal and the case eventually will be decided by the Supreme Court.

    I also agree with my distinguished brother, the learned Bmaz, who has basically characterized Obama’s legal argument as absurd on its face. Because his argument is so patently ridiculous, I do not assume that the Supreme Court will green-light Obama’s unconstitutional and unlawful power grab.

    The intriguing question for me, which I mentioned in David Dayen’s post yesterday, is what happens if the Supreme Court decides against Obama?

    Does he say, “Gee, sorry ’bout dat?” Or does he say, “Screw you, I am the President.”

    I believe he decided how he would answer that question before he decided not to seek approval from Congress.

    If I were serving in Congress, I would immediately do everything in my power to commence impeachment proceedings against the disgraceful and dangerous imbecile who willfully and maliciously lied himself into the presidency.

    Please return to your seats and buckle your seatbelts. We could be in for a rough ride as Obama seeks to broaden his powers and distract attention from the jobless flatlining economy.

    • Mary says:

      I’m thinking that Obama has every intention of getting this mooted out before it would ever get to a Supreme Court review – either by Kerry’s resolution saving him, or by making sure there’s some kind of other conclusion. Jmo. But there’s every possility that if it did get to them the issue of standing would be fraught with difficulty and the Court would be extremely likely to say it is between Congress and the President and if those are the entites with standing, then Congress has its own non-judicial remedy available to it.

    • Adam503 says:

      Yes, absolutely.

      At this point, I would think you are hoping the SCOTUS goes out on this limb with Obama. It will be that much easier to prove systemic corruption and get all their rulings tossed at once.

  15. jo6pac says:

    The really sad think it’s business as usual and it is more of the same. Voting Green and Anti War in 2012

  16. Becca says:

    So… let me see if I have this right: The president doesn’t have the power to declare war. But he can commit acts of war with impunity. Got it.

  17. eCAHNomics says:

    I’ve been saying for years that the difference between the Rs and the Ds is that the Ds bomb them for humanitarian reasons too.

    Juan Cole thinks the only problem with bombing Libya was that they executed the operation badly: made 10 mistakes.

  18. Masoninblue says:

    Hard to imagine anyone now claiming with a straight face that people should vote for Obama because he’s the “lesser” evil or because he “sucks less.”

  19. ondelette says:

    1) Charlie Savage’s piece provides that there wasn’t a formal opinion from the OLC, something that all three of you (Greenwald, bmaz, and you) have implied was overridden. That process wasn’t followed, and Savage points out that it perhaps should have been, but there wasn’t an opinion produced and then overriden.

    2) On the ‘hostilities’ issue, you might want to consult Gary Solis’ book on when shots fired in anger become international armed conflict. Because while hostilities in retrospect always begin with the first shots fired in anger, they seldom do in prospect. On that point, Koh is correct, not that it really matters.

    3) Koh is on record as saying that they should drop the drones. That is because the administration is claiming that their only roles in the NATO mission since quite early on, certainly before the 60 day point, have been supply and information. Go read the WPR § 1543 (a)(2). Those are specifically exempt from reporting and from the Congressional axe.

    I’m mentioning these things only because somebody around here needs to impartially make the case that the administration is making in some factual clarity, instead of yelling and screaming about war crimes and illegal wars and yada yada yada and ridiculousness of talking about ‘hostilities’ etc. I don’t actually believe they should not have reported to Congress. I believe the entire Security Council’s 15 states parties should have reported to the entire world before taking action and all the world should have taken action — or not — with one voice.

    But it is a matter of record that the arguments the administration is making are not as lopsidedly absurd on face as they are being portrayed, and should be argued against, I think, with more sophistication.

    As for comparisons with the Bush administration, the proper one is the fact that the Bush government never went before the American People or the Congress for permission to engage in the NATO ISAF peace enforcing mission pursuant to the Bonn Agreement of December 5, 2001. (See, it’s absolute bullshit that the U.S. has never engaged in a mission for reasons other than its own protection before on Presidential decree.) That is the reason — the real reason — the decade of U.S. involvement in Afghanistan has been such a fuck up. There have been two, not one, involvements there, which the Bush people managed to negotiate a joint command for in 2006 and completely mangle. One of them had as it’s purpose to bring about peace in Afghanistan (antithetical to the other which was to hunt down and kill terrorists). Bush rather baldly didn’t want it to succeed. But troops were authorized for it, in harm’s way, in hostilities, without the expressed permission of Congress, for way, way, way longer than 60 days.

      • ondelette says:

        You are aware that while the OLC’s legal opinions might be binding on the Executive Branch, the Legal Advisor to the Department of State’s legal opinions are frequently binding on the United States as a whole as a matter of customary international law? So he’s not just a potted plant, no matter what Glenn Greenwald and bmaz have pronounced him.

        • Masoninblue says:

          The State Department is part of the Executive Branch.

          The OLC opinions are binding on the president. It reviewed the president’s decision and decided that it violated the Constitution and the War Powers Act. That was “no-brainer” decision because the president’s decision is absurd on its face.

          Instead of abiding by the OLC decision, the president went fishing for a sycophant with a law degree in his administration who would be willing to approve of his decision and he found a couple of them.

          Good faith and reasonable reliance are elements of the advice-of-counsel defense. Obama is a lawyer who chose to willfully ignore the OLC’s opinion and essentially forum shop for someone who would agree with his facially absurd opinion. That is not good faith and it certainly isn’t reasonable reliance. I expect Judge Walton will rule against him in the case filed by Kucinich and others.

          Therefore, I firmly believe he should be primaried, denied the Democratic Party’s nomination, and impeached as soon as possible — preferably before the national election.

    • Mary says:

      I think when you write of yelling and screaming, you’re projecting. ;)

      “Charlie Savage’s piece provides that there wasn’t a formal opinion from the OLC, something that all three of you (Greenwald, bmaz, and you) have implied was overridden.”

      See – when you have to start your argument with your interpretation of what someone may have implied as being screaming and yelling – that tells you where you are.

      I never said or implied that anyone went through agency referral for a written opinion. It is the case, though, that advice was asked for, given and disregarded. I’m not sure to what extent you’ve practiced, but giving an opinion, especially in the context of a strong back and forth between other lawyers, is just as much giving advice as reducing that advice to writing. You can try to pretend that Obama didn’t disregard DOJ advice because he never asked them to memorialize it, but that’s incorrect. Not impliedly incorrect, but actually and factually incorrect.


      On the ‘hostilities’ issue, you might want to consult Gary Solis’ book on when shots fired in anger become international armed conflict. Because while hostilities in retrospect always begin with the first shots fired in anger, they seldom do in prospect. On that point, Koh is correct, not that it really matters.

      Makes absolutely no sense in the context of anything Greenwald, bmaz or I have written. I have read Solis’ btw. Agree with him on many things, but not all. However, no one is talking about “first shots fired” in anger or not. We are talking about US led or US carried through extensive bombing raids, including bombing raids on the capital of the nation that kill civilians. Over 70 bombing raids is not an issue of first shots fired, anger or intent. It is clear and open hostilities, whether such engagement started as a campaign to only provide cover to rebels in the uprising or not.

      Koh is on record as saying that they should drop the drones. That is because the administration is claiming that their only roles in the NATO mission since quite early on, certainly before the 60 day point, have been supply and information. Go read the WPR § 1543 (a)(2). Those are specifically exempt from reporting and from the Congressional axe.

      Again – no one has said anything to the contrary – you may have put a second story on your house, but its still built of straw. Bombing missions are not supply and information and Koh cannot keep a toe in both the “it’s all ok because even though you are bombing the snot out of evertying including civilians it’s not hostilities” camp and the “it’s all ok because it is only supply and information.” This is where you can’t separate the facts from the law – something discussed here frequently. If the facts extend beyond supply and information, then you can’t say that the current status is OK because IF the facts were to be changed to just supply and information, then it would be ok.

      I’m mentioning these things only because somebody around here needs to impartially make the case that the administration is making in some factual clarity,

      That would be fine,but you haven’t done it. What is your impartial argument as to why extended and extensive bombing campaigns that are proactive on targets and include a foreign nation’s capitol are not hostitlies. If you want to make that argument in a credible fashion, it would get a listen.

      As it is, you don’t seem to differentiate well between sighs and headshakes v. “yelling and screaming about war crimes” It’s not a “war crime” for an American President to engage in hostilites against a foreign state – it’s a Constitutional Crime in a nation (aren’t you Canadian, btw?) where the power to declare war is not vested in the President.

      The main “ridiculousness” of the “hostilities” discussion is that you ahve professed to enter into it and even stamp your opinion with a QED, when you have yet to actually explain with coherence why you think the bombing campaigns are not hostilities. Cowboy up.

      But it is a matter of record that the arguments the administration is making are not as lopsidedly absurd on face as they are being portrayed

      If so, you haven’t supported that with any cite or insight. Congress gives a US President a lot of leeway (too much according to strict constructionaliss) to handle a skirmish or two without Congressional approval, but a US President does not have war making power.

      “As for comparisons with the Bush administration, the proper one is the fact that the Bush government never went before the American People or the Congress for permission to engage in the NATO ISAF peace enforcing mission pursuant to the Bonn Agreement of December 5, 2001.”

      No it’s not. That’s the “proper” comparison for some point you want to make, apparently, but it’s not the proper comparison for the points others have made. The proper comparison for the Bush wars is that he did get an AUMF for both Iraq and Afghanistan. And you know what -it’s pretty damn “ridiculous” that you don’t bother to note the fact that we are already bogged down in two wars at the time Obama if frolicking away in Libya and to act as if your self-centric view on whether or not you think Obama should engage in hostilities in Libya has a rats ass worth of gravitas when Congress and the American people are already stretched thin. It’s one thing to head off to Grenada, it’s something else to start a new long term and expensive set of hostilities when the nation is still involved in two wars. It is beyond ridiculous to pretend that Americans and Congress have no right to engage in the discussion as to whether or not that should be done.

      See, it’s absolute bullshit that the U.S. has never engaged in a mission for reasons other than its own protection before on Presidential decree.

      There’s the third story on your strawhouse. Find where Greenwald, bmaz or I did that.

      When you are in a foreign nation, with the avowed purpose of regime change, engaging in extensive bombing, you are engaged in “hostilities” under US law and the law of war. If you want to fairly and impartially make the claim to the contrary – start again, from scratch. Speaking for myself, I’ll listen.

      • ondelette says:

        When the President engages in hostilities, the Congress needs to be notified. Only that, until the deadline passes. Congress has the right to declare war, but no country has declared war since the Soviet Union did so on Japan in 1945 (which you know since you read Solis). That rules out one of the conditions of the WPR. Under the laws of war you are not engaged in armed conflict, however, necessarily. And Congress does not necessarily involve itself in such things and never has (if you think it has just go back over the history of the country and figure out whether Congress did the lifting on every skirmish, incident or action), and that was part of the reasoning for the WPR was to set down a demarcation, because of that and because of “secret wars”.

        So it is not a trivial issue to decide when such hostilities trigger action by Congress which is what the Koh et al. side appears to be arguing. And that point has some validity regardless of the “extensive bombing”, another point you should have found in your copy of Solis, because it depends not only on the level of violence but on the amount of time over which it continues, his long discussion of “incidents”.

        As I said, I’m not justifying that argument, just saying that it isn’t trivial, and your single sentence at the end of your response doesn’t rebut it. Because it isn’t easily rebutted going forward in time, only retrospectively.

        The claim is also made that the NATO mission role was curtailed to supply. That can be refuted by proving that it hasn’t, but can’t be ridiculed away, because the WPR specifically exempts that role from being one that Congress can require reporting or curtail after 60 days. Which is why, of course, that the claim was made. So again, the rebuttal requires more sophistication than just saying the administration is in violation of the act, it requires empirical proof.


        Lastly, the “third story on the straw house” is not a story on a straw house at all, it’s completely central. You said,

        The one thing that we can rely upon is that the meaning of the phrase “Executive Power” has changed over the years. Unchecked, it will continue to change at an ever-increasing rate. And for those of us who remember Obama’s “stern face” as he promised during primaries and camaigns to “restore the rule of law” we can only wonder when that phrase went so far astray as to encompass the things the Obama administration has done over the last few years.

        bmaz said,

        In a critical way. The Bush/Cheney precedent, whether as to the torture component or the surveillance component, involved an administration that twisted the law to suit their ends; but give the Bushies their due, at least they made the surface attempt at having the patina of a legal imprimatur. Obama has, on quite a different and much worse hand, arrogantly and belligerently, in your face and finger in your eye, violated an important existing law that he does not challenge the Constitutionality of. Obama thus admits the validity of the War Power law and in the same breath says with impunity that he is above it and not subject to it.

        Greenwald said,

        The answer to that question ultimately became clear: they did not want to seek Congressional approval, even though they easily could have obtained it, because they wanted to establish the “principle” that the President is omnipotent in these areas and needs nobody’s permission (neither from Congress nor the courts) to do what the President wants.

        The theme is quite clear: That this establishes new ground in pushing the limits of Presidential authority to override the Constitution, specifically on Congress’ authority to wage war.

        What my supposed straw house is pointing out is extremely fundamental.

        Because it not only points out that this limit was already reached a decade ago, but it points out what its consequences are: This precise abuse of power, including the fact that the war was being waged for purposes that were not those of an imminent or national security threat to the United States or its allies, was committed in its entirety in December of 2001. Its result has been a tragic loss of purpose, the failure of the American People to know what they are spending money or blood on, incredible amounts of corruption, and a failure to accomplish the goals for which the troops and money were committed. Any such goal (R2P, peacekeeping, nationbuilding, etc.) requires the prior consent of the governed, not because of the Constitution, but because otherwise it won’t work.

        Sorry, that’s not a straw man, that’s the underlying reality of why it’s important not to have the decision made in secret. Not because of accrual of power or theories of empire. Because the proposed intervention, which costs dearly but is supposed to do some good, will fail.

    • bmaz says:

      Much of your comment is false. 1) A written opinion does NOT have to be issued for the OLC to provide legal advice and opinion to the Executive; that happens all the time and it is disingenuous to state otherwise. 2) Your “hostilities statement is gibberish. 3) Both you and the Administration are misrepresenting what is going on; there have been at least sixty air strikes and 30 drone strikes at the direct hands of the US. Those are just the ones we can confirm.

      Arguing that the US is not involved in hostilities is patently ludicrous. And, no, we do not necessarily need the help, thank you very much; especially when it comes in such patently disingenuous form.

      Oh, I now see Mary @49 has already unpacked the nonsense from the subject comment. Very good.

      • ondelette says:

        I didn’t argue that. Why don’t you actually read what I wrote. OLC’s written opinions are the ones that are binding on the executive branch. I tried commenting on your column, I got no response. You pre-empt any criticism of your comments by maintaining that people who disagree with you are Obama sycophants or partisan hacks. Argumentum ad hominem to the extreme.

        My hostilities statement is not gibberish, use of that kind of dismissal is precisely the kind of language that earns you the epithet ‘arrogant dismissive lawyer’ you so richly deserve. A cornucopia of language filled with terms like “ludicrous”, “gibberish”, “disingenuous”, and overuse of the term “patently” makes you someone who doesn’t want to debate, but wants to dismiss. Which is about right for you, bmaz.

        As for the last part of the comment, I see you have no argument. Not surprising, as it involves the historical record, and you need better than backhand insults to deal with it.

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