Barack Obama appealed to some voters in 2008 because he seemed to understand that process matters. His predecessor, George W. Bush, felt tremendous pressure to prevent another terrorist attack. Anyone in his position would've been tempted to go Jack Bauer, breaking normal protocol and even laws in service of keeping us safer. Upon reflection, however, America learned that those protocols and laws were there for a reason. That in their absence the hubris of leaders is unleashed. That innocent people get tortured, average Americans are spied upon, and ruinous wars are launched. Bush never seemed to understand that going with his gut often wasn't the wise thing to do or that he was setting dangerous precedents.
In critiquing Bush's policies, Obama articulated the value of adhering to protocol even in trying times, the folly of circumventing the law, and the importance of reestablishing its rule. Thus the promise his presidency held. Over the last two years, the promise has faded. Obama failed to close Guantanamo Bay; persisted in legally questionable spying on U.S. citizens; made himself complicit in the mistreatment of Bradley Manning; pushed for the reauthorization of the USA PATRIOT Act without commonsense provisions to protect civil liberties; and asserted the right to assassinate U.S. citizens without due process. These aren't small matters. Civil libertarians have long been outraged.
Over the weekend, Washington started to catch up.
In Congress and the political press, everyone was abuzz about Charlie Savage's big scoop in The New York Times: President Obama waged war in Libya for longer than 60 days, despite being told by the top lawyers at the Justice Department and the Pentagon that doing so would be illegal. This is a momentous revelation but not only because it bolsters the case that Obama violated the War Powers Resolution. Few seem to realize it, but that legislation, which Obama has acknowledged as legitimate, says that the president can initiate hostilities without congressional permission only in response to a "national emergency created by attack upon the United States, its territories or possessions, or its armed forces." On the day Obama sent military personnel to bomb Libya, he violated the law, as so many of his predecessors have done, and he wasn't held accountable.
What this scoop tells us is that Obama is inclined to take measures more extraordinary than any we've been privy to, in order to go with his gut in a one-off situation, prudential protocol and damaging precedents be damned. He is willing to contradict his previously stated views about when a president can start a war; sidestep the expert lawyers who would normally render a definitive judgment about how long such a war can go on sans congressional approval; and solicit third opinions. He didn't do so in response to an extraordinary event such as a mass-casualty terrorist attack on the United States, or even a foreign-policy emergency that left no time for consulting Congress. Obama went with his gut, contravening the law and normal protocol, on a foreign-policy matter of peripheral importance, even though he likely could've achieved the same policy end legally by making his case to lawmakers. This is a man so dismissive of process that he goes to unnecessary extremes to disregard it.
In that way, Obama displays one of the worst tendencies of his predecessor. Yale law professor Jack Balkin has a superb post illuminating the convergence of White House occupants 43 and 44. "There is almost always a prominent and skillful lawyer in the administration who will tell the president pretty much what he wants to hear," he writes. "If the president can simply canvass the opinions of enough such lawyers, he is not restrained very much by the law."
He goes on:
Bush wanted above all to be able to deny that he was violating the anti-torture statute and other laws and treaties. So he found a small group of lawyers in the [Office of Legal Counsel], headed by John Yoo, and asked for their opinions. This short-circuited the usual process through which the OLC collected views from various agencies and then used them to develop legal opinions for the executive branch. That is, Bush (assisted by his vice president, Dick Cheney) arranged matters so that decisions about waterboarding and enhanced interrogation techniques would be in the hands of lawyers he knew would tell him yes; the normal process of collating opinions was short-circuited, and other lawyers were effectively frozen out.
Obama's practice is different, but it has disturbing similarities. Normally, Obama would have asked the OLC for its opinion, and as noted above, the OLC would have polled legal expertise in various agencies, consulted its precedents, had long discussions, and then come up with a scholarly opinion that is normally binding on the executive branch. Instead, Obama routed around the OLC, asking for opinions from various lawyers, including the White House counsel and the attorney-adviser for the State Department. It is difficult to escape the conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC. 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.
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