Charlie Savage's scoop on how the illegal war in Libya came to be deemed legal by the president who launched it is devastating on many levels.
First off, a president very punctilious when it comes to process, essentially demoted the Office Of Legal Counsel. He sought legal advice – against precedent, from other lackeys lawyers on his administration to get the decision he wanted n the first place, and treated the OLC's usually definitive decision as just one among many. Remember Bush? What he did was stack the OLC with second-rate lackeys lawyers who would reliably provide specious "legal" reasons to justify even the most brazen of law-breaking, as in the use of torture. Obama was not quite so crude. Instead of stacking the OLC, he bypassed it. Jack Balkin makes the obvious point:
Obama's strategy, like Bush's, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.
By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC's function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC's. If one is disturbed by Bush's misuse of the process for vetting legal questions, one should be equally disturbed by Obama's irregular procedures.
There's no inherent Constitutional bar on the president making the final decision on legal matters. But the tradition of an independent legal entity at the Justice Department to provide objective analysis is designed to prevent the president cherry-picking legal decisions as he sees fit. From Bush to Obama, we have now seen conclusively that the presidency is out of control when it comes to war and peace. Given the obvious irregularities that brought the president to such a betrayal of a core campaign message, and his previous statements on presidential war-making power, we need this Congress to fight back.
The Congress needs to vote to end this war, illegally begun, illegally continued, and defended with a presidential hauteur more fitting a monarch than a president. If we cannot restrain or shame even Obama in the face of this individual act of war, how on earth will we ever prevent future presidents from doing more? If we do not stop this legally unaccountable war-making machine now, when will we?
(Photo: A US 'Predator' drone passes overhead at a forward operating base near Kandahar on January 1, 2009. By Joel Saget/AFP/Getty Images.)