Tag: Law

This is a start. But will it even get off the ground considering that it might lead to the prosecution of the banksters that are the root cause of this recession.

U.S. Inquiry Is Said to Focus on S.&P. Ratings

By Louise Story

The Justice Department is investigating whether the nation’s largest credit ratings agency, Standard & Poor’s, improperly rated dozens of mortgage securities in the years leading up to the financial crisis, according to two people interviewed by the government and another briefed on such interviews.

The investigation began before Standard & Poor’s cut the United States’ AAA credit rating this month, but it is likely to add fuel to the political firestorm that has surrounded that action. Lawmakers and some administration officials have since questioned the agency’s secretive process, its credibility and the competence of its analysts, claiming to have found an error in its debt calculations.

In the mortgage inquiry, the Justice Department has been asking about instances in which the company’s analysts wanted to award lower ratings on mortgage bonds but may have been overruled by other S.& P. business managers, according to the people with knowledge of the interviews. If the government finds enough evidence to support such a case, which is likely to be a civil case, it could undercut S.& P.’s longstanding claim that its analysts act independently from business concerns.

At Rolling Stone, Matt Taibbi has a in depth article of how the SEC, itself, ending and covering up investigations into Wall St. and the banking industry, as well as, the destruction of the evidence, over the last to decades that contributed to the financial crisis:

For the past two decades, according to a whistle-blower at the SEC who recently came forward to Congress, the agency has been systematically destroying records of its preliminary investigations once they are closed. By whitewashing the files of some of the nation’s worst financial criminals, the SEC has kept an entire generation of federal investigators in the dark about past inquiries into insider trading, fraud and market manipulation against companies like Goldman Sachs, Deutsche Bank and AIG. With a few strokes of the keyboard, the evidence gathered during thousands of investigations – “18,000 … including Madoff,” as one high-ranking SEC official put it during a panicked meeting about the destruction – has apparently disappeared forever into the wormhole of history.

Under a deal the SEC worked out with the National Archives and Records Administration, all of the agency’s records – “including case files relating to preliminary investigations” – are supposed to be maintained for at least 25 years. But the SEC, using history-altering practices that for once actually deserve the overused and usually hysterical term “Orwellian,” devised an elaborate and possibly illegal system under which staffers were directed to dispose of the documents from any preliminary inquiry that did not receive approval from senior staff to become a full-blown, formal investigation. Amazingly, the wholesale destruction of the cases – known as MUIs, or “Matters Under Inquiry” – was not something done on the sly, in secret. The enforcement division of the SEC even spelled out the procedure in writing, on the commission’s internal website. “After you have closed a MUI that has not become an investigation,” the site advised staffers, “you should dispose of any documents obtained in connection with the MUI.”

Many of the destroyed files involved companies and individuals who would later play prominent roles in the economic meltdown of 2008. Two MUIs involving con artist Bernie Madoff vanished. So did a 2002 inquiry into financial fraud at Lehman Brothers, as well as a 2005 case of insider trading at the same soon-to-be-bankrupt bank. A 2009 preliminary investigation of insider trading by Goldman Sachs was deleted, along with records for at least three cases involving the infamous hedge fund SAC Capital.

The widespread destruction of records was brought to the attention of Congress in July, when an SEC attorney named Darcy Flynn decided to blow the whistle. According to Flynn, who was responsible for helping to manage the commission’s records, the SEC has been destroying records of preliminary investigations since at least 1993. After he alerted NARA to the problem, Flynn reports, senior staff at the SEC scrambled to hide the

The article is five fascinating pages that lays out the the revolving door of the SEC managers from the agency to the banks and Wall St. positions and back to the SEC as investigators. Another case of the felons in charge of the investigation of their own criminal activity.

The Beauty Platform and Sequential Art

First they came for the guys and gals

   with skeevy comic books.

But I don’t buy skeevy comic books,

   so I shut up and kept my head down.

Then they came for the guys and gals

   with graphically violent comic books.

But I don’t buy comic books with graphic violence^{1},

   so I shut up and kept my head down.

Then they came for the guys and gals;

   with “adult” gay and lesbian comic books.

But I don’t buy adult gay and lesbian^{1} comic books,

   so I shut up and kept my head down.

Then they came for the guys and gals

   with “excessively” adult comic books of any sorts.

But I don’t buy excessively adult adult  comic books of any sort,

   so I shut up and kept my head down.

Then they came for the guys and gals with politically and socially radical comic books.

And the legal precedent was already set, so it was an open and shut case.

And that’s what I’m in for.

……………………..

That is, in any event, the dystopian future scenario. Right now we are still in a position to push back against the “North American Taliban”, and that is what the Comic Book Legal Defense Fund aims to do.

{1. OK, ok, on some of these sites my sig says otherwise with respect to yuri manga, and some science fiction dystopian manga has some pretty graphic violence, but stick with me here for dramatic effect}

This afternoon the individual mandate of the Affordable Health Care Act has been found unconstitutional. A three panel court of the 11th Circuit Court of Appeals in Florida upheld a lower court ruling that had held the entire ACA to be unconstitutional. The ruling determined that individuals cannot be forced to purchase expensive private health care insurance from birth to death or face penalties. The court allowed the rest of the law to stand.

   – It is immaterial whether we perceive Congress to be regulating inactivity or a financial decision to forego insurance. Under any framing, the regulated conduct is defined by the absence of both commerce or even the “the production, distribution, and consumption of commodities”-the broad definition of economics in Raich… To connect this conduct to interstate commerce would require a “but-for causal chain” that the Supreme Court has rejected, as it would allow Congress to regulate anything.

   – In sum, the individual mandate is breathtaking in its expansive scope. It regulates those who have not entered the health care market at all. It regulates those who have entered the health care market, but have not entered the insurance market (and have no intention of doing so). It is over inclusive in when it regulates:it conflates those who presently consume health care with those who will not consume health care for many years into the future. The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life.

In June, the 6th Circuit in Ohio had ruled that the mandate was constitutional for Congress to mandate Americans buy health care insurance. As David Kurtz at TPM makes a couple of very important points:

• usually these suits are only ever get heard before a three judge panel but because of the legal significance of this case the entire court may decide to hear the case. Either way this will in all probability be fought out in the Supreme Court.

• Because of the conflicting rulings between legal authorities, it is more likely than not that the case will get decided by the Supreme Court

Florida et al v. Dept. Of Health & Human Services et al

The problem with Rupert Murdoch’s “philosophy” is that eventually something starts to “smell” really bad and they start digging. The more they dig, the more bodies they find. Like peeling an onion.

David Carr, “Media Equation” columnist for The New York Times, taks with Rachel Maddow about the News Corps record of unethical bullying and illegal business behavior and looks ahead to Rupert Murdoch, James Murdoch and Rebekah Brooks testifying before British Parliament Tuesday.

There is a possibility that Ms. Brooks may not testify because of her arrest on Sunday.

Troubles That Money Can’t Dispel

By David Carr

“Bury your mistakes,” Rupert Murdoch is fond of saying. But some mistakes don’t stay buried, no matter how much money you throw at them.

Time and again in the United States and elsewhere, Mr. Murdoch’s News Corporation has used blunt force spending to skate past judgment, agreeing to payments to settle legal cases and, undoubtedly more important, silence its critics. In the case of News America Marketing, its obscure but profitable in-store and newspaper insert marketing business, the News Corporation has paid out about $655 million to make embarrassing charges of corporate espionage and anticompetitive behavior go away.

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Litigation can have an annealing effect on companies, forcing them to re-examine the way they do business. But as it was, the full extent and villainy of the hacking was never known because the News Corporation paid serious money to make sure it stayed that way.

And the money the company reportedly paid out to hacking victims is chicken feed compared with what it has spent trying to paper over the tactics of News America in a series of lawsuits filed by smaller competitors in the United States.

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In 2009, a federal case in New Jersey brought by a company called Floorgraphics went to trial, accusing News America of, wait for it, hacking its way into Floorgraphics’s password protected computer system.

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The complaint stated that the breach was traced to an I.P. address registered to News America and that after the break-in, Floorgraphics lost contracts from Safeway, Winn-Dixie and Piggly Wiggly.

Much of the lawsuit was based on the testimony of Robert Emmel, a former News America executive who had become a whistle-blower. After a few days of testimony, the News Corporation had heard enough. It settled with Floorgraphics for $29.5 million and then, days later, bought it, even though it reportedly had sales of less than $1 million.

Murdoch’s tactics are not a secret. In an article from Forbes written in 2005, Peter Lattman described the business practices by Paul V. Carlucci, then head of the marketing division of News America:

Paul V. Carlucci takes no prisoners. The head of a marketing division of Rupert Murdoch’s News Corp., Carlucci once rallied his sales force by showing a film clip from The

Untouchables in which Al Capone beats a man to death with a baseball bat.

I wonder if Mr. Carlucci is friends with Carl Palladino the former NY State gubernatorial candidate with a penchant for solving problems with a baseball bat?

The British are not looking kindly on Rupert Murdoch’s wiretap scandal that erupted over two weeks ago. Murdoch, who is the chairman and CEO of News Corporation, shut down the tabloid, News of the World, when it was revealed that they had hacked the cell phone and erased messages of a missing girl who was later found dead. Rather than just fire the executive, Rebekah Brooks who allowed the phone hacking, he fired over 130 people in an attempt to protect his “protégé”. Ms Brooks who resigned Friday from Murdoch’s operations, was arrested “by appointment” in London on Sunday.

Brooks was due to give evidence before MPs on the culture select committee on Tuesday.

An arrest by appointment on a Sunday by police is unusual.

In a statement the Met said: “The MPS [Metropolitan police service] has this afternoon, Sunday 17 July, arrested a female in connection with allegations of corruption and phone hacking.

“At approximately 12.00 a 43-year-old woman was arrested by appointment at a London police station by officers from Operation Weeting [phone hacking investigation] together with officers from Operation Elveden [bribing of police officers investigation]. She is currently in custody.

“She was arrested on suspicion of conspiring to intercept communications, contrary to Section1(1) Criminal Law Act 1977 and on suspicion of corruption allegations contrary to Section 1 of the Prevention of Corruption Act 1906.

The scandal has also embroiled the UK police who have been accused of being too close to News Corps, not scrutinizing the complaints and bribe taking.

The scandal has embroiled Britain’s police, who are accused of being too close to News Corp, of accepting cash from the now defunct News of the World tabloid that was at the heart of the scandal, and from other newspapers, and of not doing enough to investigate phone-hacking allegations that surfaced as far as back as 2005.

Britain’s senior police chief Paul Stephenson came under renewed pressure late on Saturday after it emerged he had stayed at a luxury spa at which Neil Wallis, a former News of the World deputy editor, was a public relations adviser.

A police statement said Stephenson did not know of Wallis’s connection with the spa, and his stay was paid for by the spa’s managing director, a family friend with no links to his professional life.

Stephenson already had come under fire after his force said Wallis, who has been arrested over the phone-hacking scandal and is free on bail, had been hired as a consultant by the police.

The investigation has spread to the US. The FBI is now investigating possible phone hacking of 9/11 survivors cell phone.

It also precipitated the resignation of Les Hinton, head of News Corp’s Dow Jones & Co, who was chief executive of News International and Ms Brooke’s boss at the time of the hacking and brought even further scrutiny of the tight knit board of directors.

And how is Fox News handling this? heh

More predictably, support has also come from News Corp’s right-leaning cable channel Fox News, where there has been a reluctance to devote as much time to the story as other outlets, especially the left-leaning MSNBC network. A recent episode of the show Fox and Friends featured a media consultant, Robert Dilenschneider, who said that the scandal was being overplayed and Murdoch had “done all the right things”.

One of the many things that PFC. Bradley Manning has been accused of is the release of the “Collateral Murder” video which depicted the indiscriminate murder of innocent civilians and two Reuters journalists by an Apache helicopter crew in a suburb of Baghdad. Now former soldiers who were members of the ground troops are coming forward and speaking out about the video, illegal orders and how the media is unfairly depicting Manning to to cover up war crimes. These brave men are calling Manning a hero if he is indeed the person who released that video.

One of the responses was a criticism of how Manning is being used to propagandized the war by journalists, specifically referencing a personal profile of Manning by Stephen Fishman in the New York magazine. The article written by former Army Specialist Ethan McCord, who served in Bravo Company 2-16, the ground troops involved in the “Collateral Murder” video, is published in its entirety by Glenn Greenwald. Here is just a little of what Spec. McCord wrote:

Serving with my unit 2nd battalion 16th infantry in New Baghdad Iraq, I vividly remember the moment in 2007, when our Battalion Commander walked into the room and announced our new rules of engagement:

“Listen up, new battalion SOP (standing operating procedure) from now on: Anytime your convoy gets hit by an IED, I want 360 degree rotational fire. You kill every [expletive] in the street!”

We weren’t trained extensively to recognize an unlawful order, or how to report one. But many of us could not believe what we had just been told to do. Those of us who knew it was morally wrong struggled to figure out a way to avoid shooting innocent civilians, while also dodging repercussions from the non-commissioned officers who enforced the policy. In such situations, we determined to fire our weapons, but into rooftops or abandoned vehicles, giving the impression that we were following procedure.

snip

The video released by WikiLeaks belongs in the public record. Covering up this incident is a matter deserving of criminal inquiry. Whoever revealed it is an American hero in my book.

snip

Fishman removes politics from a story that has everything to do with politics. The important public issues wrapped up with PFC Manning’s case include: transparency in government; the Obama Administration’s unprecedented pursuit of whistle-blowers; accountability of government and military in shaping and carrying out foreign policy; war crimes revealed in the WikiLeaks documents; the catalyzing role these revelations played in democratic movements across the Middle East; and more.

Demonizing and discrediting those who expose the criminality and corruption is now the weapon of choice by journalists and the media that wish to be subservient to a corrupt government. As Greenwald said in his article:

Who needs White House fear-mongers, propagandists, plumbers and character assassins when so many in the establishment press compete so vigorously to perform those functions instead?

Manning is now being held at Ft. Leavenworth, KS after being subjected to months of conditions that amounted to torture in the brig at Quantico Marine Base. The U.N.’s top official on torture, Juan Mendez, announced last December that his office would formally investigate those conditions and has repeated requested private access to talk to Manning. He has been repeatedly refused permission by the Obama administration. Mendez is publicly accusing the Obama administration of violating U.N. rules. Considering the Obama administrations attack on whistle blowers and the continued refusal to prosecute the crimes they expose, they are very likely afraid of what Manning would say to Mendez.

The 14th Amendment of the United States Constitution:

Section 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Republican economist Bruce Bartlett, who believes that the Republicans are playing with “the financial equivalent of nuclear weapons”, argues that Section 4 renders the debt ceiling unconstitutional, and obligates the President to consider the debt ceiling null and void.

. . . .I believe that the president would be justified in taking extreme actions to protect against a debt default. In the event that congressional irresponsibility makes default impossible to avoid, I think he should order the secretary of the Treasury to simply disregard the debt limit and sell whatever securities are necessary to raise cash to pay the nation’s debts. They are protected by the full faith and credit of the United States and preventing default is no less justified than using American military power to protect against an armed invasion without a congressional declaration of war.

Furthermore, it’s worth remembering that the debt limit is statutory law, which is trumped by the Constitution and there is a little known provision that relates to this issue. Section 4 of the 14th Amendment says, “The validity of the public debt of the United States…shall not be questioned.” This could easily justify the sort of extraordinary presidential action to avoid default that I am suggesting.

snip

Constitutional history is replete with examples where presidents justified extraordinary actions by extraordinary circumstances. During the George W. Bush administration many Republicans defended the most expansive possible reading of the president’s powers, especially concerning national security. Since default on the debt would clearly have dire consequences for our relations with China, Japan and other large holders of Treasury securities, it’s hard to see how defenders of Bush’s policies would now say the president must stand by and do nothing when a debt default poses an imminent national security threat.

Mr. Bartlett is not alone, Garret Epps, journalist and professor of law at Baltimore University, agrees and proposes the President should give a speech declaring, ‘The Constitution Forbids Default’.

Democratic members of the Senate, too, have begun exploring the possibility of declaring the debt ceiling unconstitutional:

“This is an issue that’s been raised in some private debate between senators as to whether in fact we can default, or whether that provision of the Constitution can be held up as preventing default,” Sen. Chris Coons (D-Del.), an attorney, told The Huffington Post Tuesday. “I don’t think, as of a couple weeks ago, when this was first raised, it was seen as a pressing option. But I’ll tell you that it’s going to get a pretty strong second look as a way of saying, ‘Is there some way to save us from ourselves?'”

By declaring the debt ceiling unconstitutional, the White House could continue to meet its financial obligations, leaving Tea Party-backed Republicans in the difficult position of arguing against the plain wording of the Constitution. Bipartisan negotiators are debating the size of the cuts, now in the trillions, that will come along with raising the debt ceiling.

Sen. Patty Murray (D-Wash.), head of the Democratic Senatorial Campaign Committee, said that the constitutional solution puts the question in its proper context — that the debate is over paying past debts, not over future spending.

“The way everybody talks about this is that we need to raise the debt ceiling. What we’re really saying is, ‘We have to pay our bills,'” Murray said. The 14th Amendment approach is “fascinating,” she added.

Let the games continue.

Up dates below the fold.

Once again the corporate owned, conservative Supreme Court has struck down the 1998 Arizona Campaign Finance Law provided escalating matching funds to candidates who accept public financing. How the Roberts’ court decided that law violates the First Amendment rights of these corporation is truly a backbreaking twist if logic and the constitution.

The vote was again 5-to-4, with the same five justices in the majority as in the Citizens United decision. The majority’s rationale was that the law violated the First Amendment rights of candidates who raise private money. Such candidates, the majority said, may be reluctant to spend money to speak if they know that it will give rise to counter-speech paid for by the government.

“Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand,” Chief Justice John G. Roberts Jr. wrote for the majority. Justice Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion.

What about the under funded candidate’s right to be heard under the First amendment? The reason for the law, which  was written after a corruption scandals rocked the state’s election financing during the 90’s, was to foster free speech:

The idea was to encourage candidates to forgo the scramble for money, with all its inherent invitations to corruption — to spend more time speaking to the electorate, and less time speaking to potential funders.

In that sense, its goal was very much to increase genuine political speech. But to the Roberts court, money as speech takes precedence over speech as speech.

The court’s majority clearly telegraphed its antipathy to the Arizona provision during oral arguments in March. The only real suspense was whether they would go further, and use the case to cast doubt on public financing generally.

So there was a sense of relief in the good-government community Monday.

“This is not the death knell of public financing. This ruling affects only one mechanism of public financing, and there are numerous ways to fix it,” said Common Cause president Bob Edgar in a statement. “Today, in the wake of Citizens United, it is more critical than ever that we change the way we pay for our elections by moving to a small donor system that gives the public a voice back in our government. Nothing short of our democracy is at stake.”

Well, thank these corporate shill justice for that.

The dissent written by Justice Elena Kagan, which was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, said that the Arizona law protected the First Amendment by promoting more speech and less corruption. It is not just a scorching criticism of the majority but an indictment of their own corruption:

Justice Elena Kagan on Monday began her blistering minority dissent with a morality play comparing two states. One of them limits itself to what is essentially current federal campaign finance law — and “remains afflicted with corruption.” The other tries to create a robust public-financing regime — and rids itself of corruption. The majority, Kagan writes, has taken the side of corruption.:

A person familiar with our country’s core values — our devotion to democratic self-governance, as well as to “uninhibited, robust, and wide-open” debate, New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964) — might expect this Court to celebrate, or at least not to interfere with, the second State’s success. But today, the majority holds that the second State’s system — the system that produces honest government, working on behalf of all the people — clashes with our Constitution. The First Amendment, the majority insists, requires us all to rely on the measures employed in the first State, even when they have failed to break the stranglehold of special interests on elected officials.

I disagree. The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona’s anticorruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the “opportunity for free political discussion to the end that government may be responsive to the will of the people.” I therefore respectfully dissent.

After the recent rulings that have sided with corporations this ruling comes as no surprise.

h/t to David Dayen for further reading on this decision at The Brennan Center for Justice

During his confirmation hearings to replace Leon Panetta as CIA director, General David Petraeus, the Nato commander in Afghanistan, told Senate Intelligence Committee that:

(Sen. Mark) Udall was clearly trying to get Petraeus to reiterate his opposition to torture – he read back several quotes Petraeus himself had given saying such techniques are immoral and when they’ve been used, they’ve “turned around and bitten us in the backside.” Udall asked, “do you see torture any differently in a CIA context than in a military context?”

But Petraeus instead pivoted to the TV-ready “ticking time bomb” scenario, and said torture might be justified if you have a “special situation” where an “individual in your hands who you know has placed a nuclear device under the Empire State Building. It goes off in 30 minutes, he has the codes to turn it off.” Then he urged legislators to consider crafting such an exception into the law:

I think that is a special case. I think there should be discussion of that by policymakers and by Congress. I think that it should be thought out ahead of time. There should be a process if indeed there is going to be something more than, again, the normal techniques employed in such a case. And again, I — I would certainly submit that that would be very helpful if that kind of debate could be held and if some resolution could be made as to what should be done in a case like that so that it is worked out ahead of time, rather than under an extraordinary sense of pressure in such a situation.

Torture is not a value that Americans have died for and it is beyond being stupid, it is illegal.

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.