June 21, 2011
Is Another Shoe Yet to Drop in Opinion-gate?By James G. Wiles
As you've probably read or heard, President Barack Obama just got caught opinion-shopping for a government lawyer who would sign off on letting him keep America's military involvement in the NATO war in Libya going forward without having to get Congressional authorization.
Is this just a lawyers' lash-up -- the proverbial tempest in a teapot, yet another "inside-the Beltway scandal" -- or should Americans actually care about this? Another politician being two-faced? Give me a break.
In fact, the issue is an important one, one which involves the lives of thousands of American sailors and Marines who are, literally, within shooting distance of the danger zone.
Opinion-gate consists of the President's rejection of legal opinions from the United States Department of Justice and the Department of Defense which said Mr. Obama couldn't do what he wanted, in favor of one from the legal counsel of the State Department which said he could. Opinion-gate raises immediate questions of war and peace, the President's power as commander-in-chief and Congress' war-making power. In particularly, it spotlights the highly-controversial War Powers Resolution, which was passed over President Richard Nixon's veto by a Democratic Congress at the height of the Watergate Scandal.
The State Department opinion which Mr. Obama accepted says that he is not required to seek Congressional authorization for continuing to do what the United States military and covert services have been doing in Libya. The two opinions which he rejected -- from the legal officers which modern American presidents typically look to for such guidance -- say that he is required to do so.
The reason this is no theoretical exercise is that, as of Sunday night, the NATO effort continues to flounder. British papers were reporting that the Libyan rebels are saying they're out of money. And a NATO air strike gone astray may have killed a bunch of civilians.
Meanwhile -- pretty much unreported by the Western media, an American nuclear supercarrier, the USS George H. W. Bush, with her Carrier Strike Group and a Marine Amphibious Ready Group led by the USS Bataan, continues to cruise in the Central Med. There are 2,000 Marines in that ARG.
The legal position President Obama has adopted would allow him to unleash that lethal firepower on Moammar Gaddafi and his rump government at any time -- thereby putting our military in harm's way -- without prior Congressional authorization. He would then have a free hand for 60 days before he would be required to get such approval. In the current mood around the country and in Washington, launching a full-fledged American attack on Libya might be political suicide.
Nevertheless, Mr. Obama has chosen to leave that door open for himself, if he chooses to go through it.
In the Weekly Standard, Adam J. White pulls together all the facts and players, as well as the relevant documents. He also links to the original Times piece and to Jack Goldsmith's important and fair-minded analysis of the law at lawfareblog.com. M eanwhile, in the Washington Examiner, Hugh Hewitt considers whether the government lawyers whose opinions were rejected by the President will now resign.
Among other things, Mr. Hewitt considers the limited history of resignations on matters of high principle. Two examples involving the issue of war and peace which he does not cite are Secretary of State Cyrus Vance's resignation over Jimmy Carter's attempt to rescue the American hostages in Iran in 1980 and William Jennings Bryan's resignation as Woodrow Wilson's Secretary of State in 1915 over Wilson's first moves toward intervening in World War I. Hugh Hewitt concludes: "...the Imperial Presidency has never had such a proponent as Obama."
Meanwhile, on Fox News Sunday, outgoing Defense Secretary Robert Gates danced nicely over the legal issues involved. Update: This morning, the first liberal cri de coeur was raised in the pages of the New York Times by Yale University Law School's Bruce Ackerman. The title of the piece? "Legal Acrobatics, Illegal War."
There are several considerations in play.
1. On national security matters, President Obama continues to act more like a Republican every day.
In effect, the President is now executing the national security policy (including the "freedom agenda") of his predecessor, George W. Bush. In Libya, he's being guided by the candidate he defeated for the 2008 Democratic nomination, Hillary Clinton. It is Mrs. Clinton, as Secretary of State, and those allied with her, who have taken America into the brave new world of R2P ("Responsibility to Protect") -- the use of American military power, under United Nations auspices, to protect civilians against massacre in areas having no strategic importance to the United States.
That said, no American president since Richard M. Nixon has liked the War Powers Resolution. Mr. Obama is proving to be no exception. The fact that it was also Mr. Nixon who said: "when the President does it, that means it's not illegal" is just a delicious irony -- icing on the cake.
2. Who leaked this story to the Times? Who did the leak benefit? It certainly embarrassed the President. And the Obama Administration is not known for leaking.
Stay tuned on that one.
3. Does the average voter even care about this? Can the "national conversation," as they like to say on MSNBC, even handle one more topic, with the economy and the deficit crisis (not to mention the Caylee Anthony trial) crowding everything else out? This may simply be too inside baseball for everyone except national security geeks and Washington politicians.
4. Does the story have legs? We're at the beginning of the Washington "silly season" -- which will run until Labor Day. It may simply disappear against the general background noise. If the Republican-controlled House Judiciary Committee gets interested in hearings, then we could be facing a long hot summer. But we already were.
5. If we get hearings in the House Judiciary Committee, will the President assert executive privilege (and, perhaps, attorney-client privilege) to prevent the lawyers from testifying? You betcha -- which will set up the first legal battle in court between the Democratic Administration and the new Republican House.
6. Democratic hypocrisy. The silence of the left is deafening. It may not last. Watch Congressman Dennis Kucinich (and Ron Paul).
Maybe they're just numb after Weinergate.
7. Please, God, don't let a Republican offer an impeachment resolution or, if a Democrat does offer one (come on, Dennis!), don't let a Republican vote for it.
8. In the meantime, Senate Majority Leader Harry Reid appears willing to agree to absolutely anything Barack Obama wants. Mr. Reid and former House Speaker Nancy Pelosi used to be front and center before the TV cameras talking, gravely, about their "concern" every time George Bush cleared his throat loudly. No more.
It was conservative satirist P.J. O'Rourke who wrote a book about Congress called Parliament of Whores. The phrase has endured.
Few people remember that P.J. was writing about a Democratic Congress.
9. Will the other shoe, in fact, drop? If the government attorneys whose advice was rejected by the President do resign, then this story does have legs.
With Weinergate, the uptick in unemployment, the stock market drop, and now this, all in the same month, Christmas came early this year for conservatives. Republicans need to remember the advice of that great Democratic strategist, James Carville (aka "the Ragin' Cajun"): when your enemy is drowning, throw him a safe."
Looks like Mr. Obama already has one.
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