06/21/2011 archive

Has Barack Obama over-stepped his constitutional authority by continuing to participate in the Libya NATO action without congressional consent? Like George W. Bush ignoring the law banning water boarding as torture, Obama has decided to ignore the War Powers Resolution and the advice of two top lawyers from the Pentagon and his own DOJ. In the New York Times, Charlie Savage writes a scathing analysis of the president’s actions:

   President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

   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.

The question is could this open an investigation by the House to consider impeachment. Several other lawyers have their own views, none of them very pretty.

This stinging comparison from Jack Balkin at Balkinization of Obama’s decision to not consult with his own Office of Legal Council (OLC): George W. Obama and the OLC

It is instructive to compare President Obama’s actions with those of his predecessor, George W. Bush, who sought legal justification for his decision to engage in waterboarding and other “enhanced interrogation techniques,” which constituted torture. 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 OLC, 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-Advisor 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.

At Lawfare, Jack Goldsmith has a similar view but adds:

This episode makes me wonder how all of this is being taken by the U.S. military.  It must be strange to many involved in Operation Odyssey Dawn to be told that not only are they not involved in “war,” they are not even involved in “hostilities.”  A midshipman at the Naval Academy wrote to cto say, in light of the original unilateral resort to force in Libya, that he wondered whether the soldiers fighting in Libya “are breaking their oath to obey only legal orders.”  I think this is a large overreaction to the initial use of force.  And despite my views of the WPR here, I do not think that disobedience would be a proper reaction to the President’s decision under the WPR.  The President gets to make the call and his decision is not so far out of bounds to warrant disobedience.  But it cannot be pleasant for the men and women involved in this “kinetic military action” to know that the Defense Department General Counsel and the head of OLC think the intervention in Libya as currently executed is unlawful.

Glenn Greenwald believes that Obama’s end run around the WPR may be even worse than the Bush/Cheney regime:

   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.

In summing all this up, bmaz at FDL states:

Without saying Obama should be impeached, failure to at least have the discussion made in those terms is dereliction of constitutional duty by people, pundits and Congress. This critical issue is not yet getting that kind of play, but it should as it is absolutely why the founders placed the provision in the Constitution to start with.

If our society and political discourse cannot seriously discuss impeachment for the type of executive perfidy demonstrated by Barack Obama in relation to Libya and the War Powers Resolution, and could not discuss it during the Bush/Cheney crimes, then the impeachment provision of the Constitution has no meaning and should be stricken.

Seriously, those are the stakes. A discussion, even an investigation, does not mean there has to be an impeachment conviction, or even that articles of impeachment should even be filed. But the discussion must be had if there is to continue to be integrity to the most fundamental terms and conditions of the United States Constitution.

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

Eugene Robinson: Obama Is Wrong on War Powers

Let’s be honest: President Barack Obama’s claim that U.S. military action in Libya doesn’t constitute “hostilities” is nonsense, and Congress is right to call him on it.

Blasting dictator Moammar Gadhafi’s troops and installations from above with unmanned drone aircraft may or may not be the right thing to do, but it’s clearly a hostile act. Likewise, providing intelligence, surveillance and logistical support that enable allied planes to attack Gadhafi’s military-and, increasingly, to target Gadhafi himself-can only be considered hostile. These are acts of war.

Yet Obama, with uncommon disregard for both language and logic, takes the position that what we are doing in Libya does not reach the “hostilities” threshold for triggering the War Powers Act, under which presidents must seek congressional approval for any military campaign lasting more than 90 days. House Speaker John Boehner said Obama’s claim doesn’t meet the “straight-face test,” and he’s right.

New York Times Editorial: Wal-Mart Wins. Workers Lose.

Wal-Mart Stores asked the Supreme Court to make a million or more of the company’s current and former female employees fend for themselves in individual lawsuits instead of seeking billions of dollars for discrimination in a class-action lawsuit. Wal-Mart got what it wanted from the court – unanimous dismissal of the suit as the plaintiffs presented it – and more from the five conservative justices, who went further in restricting class actions in general.

The majority opinion by Justice Antonin Scalia will make it substantially more difficult for class-action suits in all manner of cases to move forward. For 45 years, since Congress approved the criteria for class actions, the threshold for certification of a class has been low, with good reason because certification is merely the first step in a suit. Members of a potential class have had to show that they were numerous, had questions of law or fact in common and had representatives with typical claims who would protect the interests of the class.

Beyond Netroots Nation – The Progressive Blogosphere vs. The Democratic Establishment

By one_outer, featured at Firedog Lake (also top of the Recommended List)

Monday June 20, 2011 5:15 am

It was in speaking with fellow rank and file netroots types that I soon realized what was really going on at this conference. The dominant theme of the conference was not chosen, intended, or likely desired by any of the organizers. It wasn’t discussed by any of the panels or speakers I saw. Instead, it was in the halls, in the questions, and on the lips of those without an exhibitor, speaker, or media badge.

…

Everywhere at NN11 there were media consultants, organizing consultants, all manner of firms doing everything from polling to new media. All for campaigns, parties and anyone else that can afford them. I wrote about some of these folks yesterday. They are not capable of questioning the rationale of the campaigns they work on because the system works for them. Anything you want, just organize for a candidate and work hard enough and it can happen. Magic thinking, all self serving, and almost all genuinely self deceiving as opposed to knowingly misrepresenting the electoral choices we have every two years.

These professional political types are well on their way to full commodification of progressive politics for their own gain, as the elite gatekeepers of progressive votes, volunteer hours, and wallets. These folks, whether they realize it personally or not, see all the progressives that aren’t them as part of their business model. In their business model what is in our best interest is what works for them and their employers – any other view is unserious and bound to help the scary Republicans.

The professional class in DC sees a world in which there is no alternative, a world in which our goals and salvation runs through them and only through them. And they’re panicking – they know they’re losing us and don’t know what to do. After all, why would everyone with a microphone volunteer their thoughts on the enthusiasm and voting problem if they weren’t scared shitless they were going to lose all of us – and our readers!?

The countervailing force to the Democratic establishment is us, the bloggers, who make these communities what they are and who all know that we have been misled and betrayed on some level. These folks see the choice in front of them. They are seeing that there is an avenue of investigation into activism other than Democratic politics.

These folks, from FDL and dKos and everywhere else, didn’t get into progressive politics to protect their own little turf, or bump their salary, or get their ego stroked by networking. They did not get involved to select a nominee (and we did – Obama would not be president without the support of the netroots during the nomination fight) only to watch that man as president betray their principles and their belief in him, to say nothing of the spineless and corrupted Democrats in Congress. They do not see themselves as cogs in an establishment political system that merely calls itself “progressive”. They got involved to change a country and a world. And increasingly they are seeing the path forward as around the Democratic establishment rather than through it.

These folks know they have a choice, and they are taking that choice seriously. Netroots Nation is a major data point in how people will make that choice. By that measure, the establishment failed miserably. Will progressives now take the chance to jump ship, chart a new course in keeping with our independent spirit, or will be be subsumed by scare tactics and stern talking to’s?

Are we really the kind of fucking retards that will allow ourselves to be used and thrown away twice?

Some musings by Jane Hamsher below.

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

Click on images to enlarge.

June 21 is the 172nd day of the year (173rd in leap years) in the Gregorian calendar. There are 193 days remaining until the end of the year.

On non-leap years (until 2039), this day marks the summer solstice in the northern hemisphere and the winter solstice in the southern hemisphere, and this is the day of the year with the longest hours of daylight in the northern hemisphere and the shortest in the southern hemisphere.

On this day in 1964, Civil rights workers disappear.

In Neshoba County in central Mississippi, three civil rights field workers disappear after investigating the burning of an African American church by the Ku Klux Klan. Michael Schwerner and Andrew Goodman, both white New Yorkers, had traveled to heavily segregated Mississippi in 1964 to help organize civil rights efforts on behalf of the Congress of Racial Equality (CORE). The third man, James Chaney, was a local African American man who had joined CORE in 1963. The disappearance of the three young men garnered national attention and led to a massive FBI investigation that was code-named MIBURN, for “Mississippi Burning.”

The Mississippi civil rights workers murders involved the 1964 lynching of three political activists during the American Civil Rights Movement.

The murders of James Chaney, a 21-year-old black man from Meridian, Mississippi; Andrew Goodman, a 20-year-old white Jewish anthropology student from New York; and Michael Schwerner, a 24-year-old white Jewish CORE organizer and former social worker also from New York, symbolized the risks of participating in the civil rights movement in the South during what became known as “Freedom Summer”, dedicated to voter registration.

The case also made salient the efforts of Jews in the civil rights movement.

The Lynching

The lynching of the three men occurred shortly after midnight on June 21, 1964, when they went to investigate the burning of a church that supported civil rights activity. James Chaney was a local Freedom Movement activist in Meridian, Michael Schwerner was a CORE organizer from New York, and Andrew Goodman, also from New York, was a Freedom Summer volunteer. The three men had just finished week-long training on the campus of Western College for Women (now part of Miami University), in Oxford, Ohio, regarding strategies on how to register blacks to vote.

After getting a haircut from a black barber in Meridian, the three men headed to Longdale, Mississippi, 50 miles away in Neshoba County, in order to inspect the ruins of Mount Zion United Methodist Church. The church, a meeting place for civil rights groups, had been burned just five days earlier.

Aware that their station wagon’s license number had been given to members of the notorious White Citizens’ Council and Ku Klux Klan, before leaving Meridian they informed other Council of Federated Organizations (COFO) workers of their plans and set check-in times in accordance with standard security procedures. Late that afternoon, Neshoba County deputy Cecil Price – himself a member of the White Knights of the Ku Klux Klan – stopped the blue Ford carrying the trio. He arrested Chaney for allegedly driving 35 miles per hour over the speed limit. He also booked Goodman and Schwerner, “for investigation.”

Schwerner, Goodman, and Chaney were all denied telephone calls during their time at the jail. COFO workers made attempts to find the three men, but when they called the Neshoba County jail, the secretary followed her instructions to lie and told the workers the three young men were not there. During the hours they were held incommunicado in jail, Price notified his Klan associates who assembled and planned how to kill the three civil rights workers.

While awaiting their release, the men were given a dinner of spoonbread, green peas, potatoes and salad. When the Klan ambush was set up on the road back to Meridian, Chaney was fined $20, and the three men were ordered to leave the county. Price followed them to the edge of town, and then pulled them over with his police siren. He held them until the Klan murder squad arrived. They were taken to an isolated spot where James Chaney was beaten and all three were shot to death. Their car was driven into Bogue Chitto swamp and set on fire, and their bodies were buried in an earthen dam. In June 2000, the autopsy report that had been previously withheld from the 1967 trial was released. The report stated Chaney had a left arm broken in one place, a right arm broken in two places, “a marked disruption” of the left elbow joint and may also have suffered trauma to the groin area. A pathologist who examined the bodies at the families’ request following their autopsies noted Chaney also had a broken jaw and a crushed right shoulder which were not mentioned in the autopsy report. As the autopsy photographs and x-rays have been destroyed, the injuries could not be confirmed.

Oceans on brink of catastrophe

Marine life facing mass extinction ‘within one human generation’ / State of seas ‘much worse than we thought’, says global panel of scientists

By Michael McCarthy, Environment Editor  Tuesday, 21 June 2011

The world’s oceans are faced with an unprecedented loss of species comparable to the great mass extinctions of prehistory, a major report suggests today. The seas are degenerating far faster than anyone has predicted, the report says, because of the cumulative impact of a number of severe individual stresses, ranging from climate warming and sea-water acidification, to widespread chemical pollution and gross overfishing.

The coming together of these factors is now threatening the marine environment with a catastrophe “unprecedented in human history”, according to the report, from a panel of leading marine scientists brought together in Oxford earlier this year by the International Programme on the State of the Ocean (IPSO) and the International Union for the Conservation of Nature (IUCN).

Jon Stewart of Comedy Central’s The Daily Show appeared on Fox News Sunday to debate with Chris Wallace “media bias”. Guess who lost? No betting, I won’t take your money.

   WALLACE: Even you make fun of the fact that “The New York Times” and the “Washington Post” when this document dump of 24,000 e-mails of Sarah Palin was released, and they got so excited about it, they asked their readers, can you help us go through these 24,00 documents?

   STEWART: Right.

   WALLACE: How do you explain the fact that they would do that? They would ask the readers to help them go through the Palin e-mails — inconsequential as they turned out to be —

   STEWART: Right.

   WALLACE: — but they never said help us go through the 2,000 pages of the Obama health care bill?

   STEWART: Because I think their bias is towards sensationalism and laziness. I wouldn’t say it’s towards a liberal agenda. It’s light fluff. So, it’s absolutely within the wheelhouse.

   I mean, if your suggestion is that they are relentlessly partisan and why haven’t they gone and backed away from Weiner? Now, they’ve dove, they’ve jumped into the Weiner pool — so, with such delight and relish, because the bias —

   WALLACE: Some things are indefensible.

   STEWART: — the bias of the mainstream media — oh, I’m not saying it’s defensible, but the bias of the mainstream media is toward sensationalism, conflict and laziness.

Amazing. Who was interviewing whom? Comparing Fox News to Comedy Central? Wallace is not only insane but really stupid. Lawrence O’Donnell and Rachel Maddow discussed Jon’s “interview” on O’Donnell’s The Last Word:

Up Date: From John Aravosis @AMERICAblog News: Fox Edits Out Jon Stewart’s criticism of Fox exec

In case you missed it.

“This is to be a newscast of contextualization, to be delivered with a viewpoint that the weakest citizen of this country is more important than the strongest corporation,” he said in his first Special Comment segment of the new show. “That the nation is losing its independence through the malfeasance of one political party, and the timidity of the another. And that even though you and I shouldn’t have to be the last line of defense, apparently we are.”

h/t Raw Story

If you do not get Current TV you can watch Keith here:

Due to traveling playing in the mud (don’t ask, trust me it’s messy), the Evening Edition will brought to you by c’est moi.

Wal-Mart wins Supreme Court sex-bias ruling

By James Vicini

WASHINGTON (Reuters) – The Supreme Court threw out on Monday a massive class-action sex-discrimination lawsuit against Wal-Mart Stores Inc, the biggest ever such case, in a major victory for the world’s largest retailer and for big business in general.

The justices unanimously ruled that more than 1 million female employees nationwide could not proceed together in the lawsuit seeking billions of dollars and accusing Wal-Mart of paying women less and giving them fewer promotions.

Indiana Planned Parenthood to drop Medicaid patients

INDIANAPOLIS (Reuters) – Planned Parenthood of Indiana will stop seeing Medicaid patients after Monday because of an Indiana law that cut the provider’s funding.

PPIN went to court last month to prevent Indiana from cutting funding to the state’s largest reproductive health care provider. U. S. District Judge Tanya Walton Pratt said she would make a decision on whether to enjoin the law by July 1.

“Our 9,300 Medicaid patients, including those who had appointments Tuesday, are going to see their care disrupted,” Betty Cockrum, president and CEO of PPIN, said in a statement.

The Medicaid funds stopped May 11, the day Republican Governor Mitch Daniels signed a law that restricts abortions and cuts federal funding to Planned Parenthood.

There is a War on Women in this country led by men and three women