March 9, 2013

The lawyers who denounced Bush's claim of presidential war power were "uneasy" when it was their task to define Obama's war power.

Back in 2008, David Barron and Martin Lederman had published — in the Harvard Law Review — a "definitive denunciation" of President Bush's approach to war powers. Now, they were writing a secret memo in support of Obama's power:
It preliminarily concluded, based on the evidence available at the time, that [Anwar al-]Awlaki was a lawful target because he was participating in the war with Al Qaeda and also because he was a specific threat to the country....

But as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas....

Their labors played out against the backdrop of how some of their predecessors under President George W. Bush had become defined by their once-secret memos....

Nearly three years later, a version of the legal analysis portions would become public in the “white paper”... Divorced from its original context... the free-floating reasoning would lead to widespread confusion....
Karma's a bitch!

94 comments:

Robert Cook said...

They're hypocrites!

hoyden said...

Who couldn't see that one coming?

edutcher said...

Wait till we invade Syria.

Ann Althouse said...

Karma's a bitch!

No, but a paper trail and hypocrisy will always bring you down.

JAL said...

I thought the war with al Qaeda itself was illegal?

hahahaha

JAL said...

And with the intertubes, nothing ever really goes away.

LuAnn Zieman said...

Didn't we already annihilate al Qaeda? I could have sworn that was what the Benghazi flap was all about.

Left Bank of the Charles said...

I wonder that they didn't decline when asked to write the kill memo, realizing that hey had been picked to write it because of their anti-Bush war powers article.

Drago said...

Cookie: "They're hypocrites!"

Well, yes.

More importantly, they are leftists.

And here's where we insert Fen's Law: The left really doesn't believe in a single thing that they lecture the rest of us about.

It's all about doing/saying whatever it takes each day, regardless of what was done/said previously, even if what was done/said previously completely contradicts the new position.

For the left, "history" starts anew each and every day.

Diogenes of Sinope said...

The are Leftists, they support Leftist authoritarianism and abuse of power. BTW the only way there would be any "Karma" Ann is if the media weren't Lefties too. But the press is Left and won't say a thing about this hypocrisy.

Diogenes of Sinope said...

The are Leftists, they support Leftist authoritarianism and abuse of power. BTW the only way there would be any "Karma" Ann is if the media weren't Lefties too. But the press is Left and won't say a thing about this hypocrisy.

Ann Althouse said...

By the way, this is one reason I voted for Obama in 2008.

It's easy to criticize from the outside.

Things look different on the inside, when it is your responsibility to protect the American people.

garage mahal said...

Obama is so like Bush and so not like Bush. It's complicated.

Anthony said...

Well, we always knew the anti-war movement was largely composed of politically-driven unprincipled hacks, but it's nice to see it demonstrated.

Like, every day for the past 4+ years.

Tim said...

This is wonderful.

Just wonderful.

Robert Cook said...

"More importantly, they are leftists."

Hardly. There are no leftists in Washington.

edutcher said...

LuAnn Zieman said...

Didn't we already annihilate al Qaeda? I could have sworn that was what the Benghazi flap was all about.

We did.

We gutted it in Iraq and discredited it in much of the Moslem world, but the Genius In Chief has done such a swell job the last 5 years doing things his way that it's had the breathing room to reconstitute itself.

Ann Althouse said...

By the way, this is one reason I voted for Obama in 2008.

It's easy to criticize from the outside.

Things look different on the inside, when it is your responsibility to protect the American people.


Considering he's pretty much been allowed to skate on mismanaging both A-stan and Iraq, I'd guess the gamble wasn't worth it.

Tim said...

"It's complicated."

It's hilarious.

FIFY.

edutcher said...

Robert Cook said...

More importantly, they are leftists.

Hardly. There are no leftists in Washington.


And there are no homosexuals in Iran.

And no gambling at Rick's.

garage mahal said...


Hardly. There are no leftists in Washington


These "leftists" in Washington that defunded ACORN over a cropped Breitbart video with a dude in a pimp costume. LOL

I'm surprised ALthouse missed that story that James O'Keefe had to pay off an ACORN employee 100k over that. Pulitzer!

Drago said...

garage: "It's complicated."

I suspect you find many many things in life "complicated".

Not to worry. Your next set of marching/commenting orders will be along shortly.

Just sit back, relax and prepare for another round of voice-actuated auto-trolling.

Oso Negro said...

Cheesedick liberal lawyers.

Michael said...

Garage. "I'm surprised ALthouse missed that story that James O'Keefe had to pay off an ACORN employee 100k over that. Pulitzer!"

Got him! Taped the poor man without his permission. That never happened in journalism before. Ever.

Drago said...

Wasn't there an incident recently in Wisconsin where Scott Walker was taped without his permission?

Lem said...

Obama is so like Bush and so not like Bush. It's complicated.

There is a crack in the armor.

Baron Zemo said...


"Things look different on the inside, when it is your responsibility to protect the American people."

They don't give a fuck about the American people. They are about getting and holding power. If surrendering to the terrorists won elections then that is what they would do. They are pretty chummy with Hamas and the Muslim Brotherhood as it is.

These guys are the usual academic whores. Nothing to see here. Move along sonny.

Robert Cook said...

"And there are no homosexuals in Iran.

"And no gambling at Rick's."


Oh, there are homosexuals in Iran, and gambling at Rick's. But there are no leftists in Washington.

Even Vermont "socialist" Bernie Sanders couldn't be roused to support Rand's filibuster.

garage mahal said...

Bernie Sanders is in the back pocket of his constituents.

n.n said...

The challenge is to describe positions which are internally, externally, and mutually consistent across time and space. This may be a task best left to an omniscient or omnipotent entity. It is not within the reach of mere mortals. Even mortal gods fail in the first and second capacity. Typically sooner than later.

bpm4532 said...

That's just being flexible and nuanced. You have to be supremely intelligent to fully appreciate it.

edutcher said...

Cook thinks if you don't do it exactly his way, you can't be a Lefty.

Riiight.

bpm4532 said...

the policy paper they were writing was put together months after the event featured in the article. This was when Obama wasn't sure he was going to be re-elected and have killed all those people with drones, it was recognized they needed a written policy to cover they asses and avoid prosecution in the future.

jacksonjay said...


Democrats enjoy Karma King's X!

That was Then, This is Now!

Michelle Dulak Thomson said...

Anyone else here find it interesting that the long NYT article finds space to mention a 13-hour filibuster, but not to mention Rand Paul?

Kirk Parker said...

Althouse

"By the way, this is one reason I voted for Obama in 2008"

This made no sense then; it makes no sense now... so I guess you could say it has stood the test of time.

jr565 said...

And here's where we insert Fen's Law: The left really doesn't believe in a single thing that they lecture the rest of us about.


Exactly! Now of the two positions that these writers held I probably agree with one of them. But it's quite clear they will argue any position to get their man in power.

Obama - the presidency where the lefties become the neocons. I love it!

jr565 said...

Also, you'll note that even when the lefty becomes the leader he endsd up following Bush's lead.
Now, this could be chalked up to power corrupting absolutely, OR maybe Bush's poicies were right all along. And so, when faced with reality, lefties run foreign policy the same way because they aren't complete idiots and were only mouthing off to get their retards to elect them.

jr565 said...

Robert Cook wrote:
Oh, there are homosexuals in Iran, and gambling at Rick's. But there are no leftists in Washington.

Even Vermont "socialist" Bernie Sanders couldn't be roused to support Rand's filibuster.

THere are plenty of leftists in Washington, they just have no principles.

jr565 said...

Garage Mahal wrote:
It's complicated."


That odd feeling a liberal has when they are caught defending all that they villified others over because to not do so would mean they were racist and or a traitor to the cause.
So it goes down the memory hole but leaves a bad taste in the mouth like you threw up in it a little.

Writ Small said...

Hypocrisy is overrated as a flaw.

jr565 said...

Now I'm just waiting for the evidence that we waterboarded someone too, or had someone sent to a place where they were waterboarded, and that the administratoin knew about it, just to put a nice little cherry on top of this shit sundae that the libs have to eat.
Even if I don't get that it's still a lot of shit. So I hope Garage and O Ritmo are really hungry.

CWJ said...

If "karma is a bitch" they wouldn't get away with it. But they will. Just because you AA noticed won't make one bit of difference. You see, that's the problem. Because you noticed and you blogged you might think you did your duty and it made a difference. But it didn't, and all you and the country have to show for it is your blog. There is no karma in this case, sophistry rules!

Ambrose said...

It comes down to a preference for the rule of (good) men over the rule of law. They trust Obama and other Democrats with this power and they don't trust Bush or other Republicans. If the GOP recaptures the White House in 2016, these same people will oppose this discretionary power. The sad thing is that they will dust off and roll out sincere folk like Cindy Sheehan as props to make their case.

David said...

"Administration officials who had labored for months to evaluate the killing of Mr. Awlaki took stock. Mr. Khan, whom they had specifically decided not to add to the kill list, was dead, too. While the lawyers believed that his killing was legally defensible as collateral damage, the death cast a cloud over all those months of seemingly cautious efforts to analyze who should go on the list and who should not."

Oh the poor things. The administration killed a 16 year old kid and it made their lawyering look silly.

wyo sis said...
This comment has been removed by the author.
Baron Zemo said...

You would think these maroons only watch "The View" and have never seen "Homeland." Just sayn'

Baron Zemo said...

Because a youtube clip will cause a riot and the death of an ambassador but the drone murder of a 16 year old with other collateral damage is just a mere bag of shells.

Where are all the Dems who said that our bombing and killing the terrorists would just create more terrorists? What happened to that bullshit? Or was it just bullshit to hammer Bush with for political purposes?

You make the call.

chrisnavin.com said...

As always, it's important to point out that Robert Cook is an actual socialist.

Geoff Matthews said...

They weren't anti-war, they were anti-Republican.

Bill, Republic of Texas said...

It's all good. Obama gets his ass covered, the lawyers are feeling "uneasy" and therefore get their liberal cred back. Everyone wins!

Bob Ellison said...

"...particularly after reading a legal blog..."

Interesting. There are quite a few lawprof blogs, but not so many to be impossible to survey. This will probably come out. "Volokh made a fool of me!"

Could it be, would it be, that these guys have discerned that they were not so much smarter than the average bear as they thought they were?

Carnifex said...

I wondered how the Nazi's achieved power in Germany and then I read GM...question answered

edutcher said...

Baron Zemo said...

Because a youtube clip will cause a riot and the death of an ambassador but the drone murder of a 16 year old with other collateral damage is just a mere bag of shells.

Where are all the Dems who said that our bombing and killing the terrorists would just create more terrorists? What happened to that bullshit? Or was it just bullshit to hammer Bush with for political purposes?


To ask the question, O mighty Baron, is to answer it.

Carnifex said...

And I know there's some stupid internet law about Nazi's. Don't give a shit.

pauldar said...

"Bernie Sanders is in the back pocket of his constituents" So guessing when the 1st American killed by a drone happens to live in Vermont, 'ole Bernie wont care. How Quaint

john said...

garage mahal said...
Obama is so like Bush and so not like Bush. It's complicated.


It's not complicated. You just need to say right:

Obama so likes Bush. Bush is the best friend Obama ever had. Maybe the only friend.

Maguro said...

Cook thinks if you don't do it exactly his way, you can't be a Lefty.

Riiight.


I would love Cook to tell us sometime who the actual leftists are. It's probably just Cook and that one dude from Rage Against The Machine, everyone else is a rightwinger or a "centrist" like Obama.

garage mahal said...

And I know there's some stupid internet law about Nazi's. Don't give a shit.

Obviously.

Lem said...

...particularly after reading a legal blog..

I'm guessing the Volokh Conspiracy.

jr565 said...

GeoffMatthews wrote:

They weren't anti-war, they were anti-Republican.


Well said.

Lem said...

I'm picturing Hagel coming to a rude awakening himself... now that he is the secretary of Defence.

Lem said...

Defense

Carnifex said...

I are obvious,
GM are oblivious

Works, doesn't it, you fascist?

Still waiting for Walker to be indicted....waiting...waiting...

Chip Ahoy said...

readied for the missile shots, and fired.

It was the culmination of years of painstaking


That there's what you call a gap in the story. Like a whole chunk is taken out.

garage mahal said...

Still waiting for Walker to be indicted....waiting...waiting...

that...that hurts! STOP IT GUYYZZ!!! .....arrrgh

bagoh20 said...

"By the way, this is one reason I voted for Obama in 2008.

It's easy to criticize from the outside. "


Then that was not too bright. One reason it was a stupid vote was that the press would clearly be self-neutered by the first Black President bullshit, and that's far more important than whether or not the administration feels uncomfortable (for a nanosecond) about the lies they are permitted to fabricate at will.

You should keep that excuse to yourself madam. Besides being a bad trade off, it's only a justification for a decision made on the same level as the average "The View" fan, but they're more in touch with their own motivations. You don't have to try and act smart for us, we love you anyway, and so does Obama the boyfriend.

gadfly said...

When liberals give up their principles for the good of their political regime, they have to have already buried their consciences.

This story is as phony as a $3 bill. It appears that since the murder of unborn babies was sanctioned, the legal profession finds it easy to advise Obama that killing Americans without due process is always legal (if you are the POTUS).

Inga said...

Baggy, you are aging well. And don't be sassy to our Althouse!

Inga said...

And I don't watch the View, it's as dumb as Idol.

MayBee said...

I have a few issues with the story. One, it does not mention the Yemen-trained jihadist who killed Pvt William Long and wounded another in Arkansas. I suspect this is because the administration has chosen to pretend that didn't happen, for whatever reason
After that happened, and al-Hasan did the shooting at Fort Hood, and it came out that we had intel about the underwear bomber we had ignored, Brennan took to the airwaves to say, basically, that we just had no idea so much was going on in Yemen

Another problem in the story is the circular reasoning the lawyers used to convince themselves they weren't like Bush's lawyers. It's illegal to murder Americans overseas. But not if the murder is legal. So they declared the murder legal and avoided the problems the Bush lawyers had with power grabs? They are lying to themselves.

Finally, the story about accidentally killing the 16 year old stinks. Whey were aiming for someone else? Really? And Gibbs glibly said he should have had a better father. That "justification" did not even make the story, again, I suspect to protect the administration.

MayBee said...

It would be interesting if someone actually asked Obama about this.

J2 said...

--

Emptywheel believes the blog referred to in the NYT is "Opinio Juris" and that this is the relevant post by Kevin Jon Heller:

http://opiniojuris.org/2010/04/08/lets-call-killing-al-awlaki-what-it-is-murder/

MayBee said...

The "widespread confusion" line in the article is also written to protect the admin. We are asked to believe the paper presented as a white paper was actually a very specific document. Of course, if it described legal justification for killing one man, it would have to be applicable to others. They shouldn't have bent the law so it could apply to one man only.

MayBee said...

J2- thanks for bringing up emptywheel. I see she notices the same administration ass-covering points in the article as I do.

Robert Cook said...

"I would love Cook to tell us sometime who the actual leftists are."

It would be anyone (in Washington) who actually proposed and fought for, and maybe even helped push through and implement, "left" or "progressive" policies. Someone who would stop protecting and enabling the wealthy and powerful at the expense of the poor and powerless.

I don't know if she is a leftist or considers herself such, but Elizabeth Warren looks encouraging, and the Alan Grayson of the first term. (Again, I don't know if he is or considers himself a leftist. One doesn't have to be a leftist to hold the feet of the bastards to the fire...one merely has to believe oneself to be a representative and voice for the American people and not a stooge for the elites.)

MayBee said...

History shows us leftist policy *is* protecting the powerful, often making the them wealthy.

wyo sis said...

Elizabeth Warren and Alan Grayson.
That tells you all you need to know about Robert Cook.

Fundamentally screwed up.

AprilApple said...

Here's anotehr example of Obama's thugocracy.

edutcher said...

wyo sis said...

Elizabeth Warren and Alan Grayson.
That tells you all you need to know about Robert Cook.

Fundamentally screwed up.


The word is delusional.

Robert Cook said...

"Elizabeth Warren and Alan Grayson.
That tells you all you need to know about Robert Cook.

"Fundamentally screwed up."



Yeah, imagine being so screwed up as to be encouraged by representatives of the people actually showing signs they are trying to represent the people...and not, as their colleagues happily do, shit on the people and crawl in servility to the wealthy and powerful. It's crazy!

Chef Mojo said...

Yeah, imagine being so screwed up as to be encouraged by representatives of the people actually showing signs they are trying to represent the people...and not, as their colleagues happily do, shit on the people and crawl in servility to the wealthy and powerful.

LOL! That describes Lizzie Warren to a "T." Right.

And it was sure nice seeing her stand on principle right up there with Rand Paul the other day!

Oh. Wait. Nevermind...

wyo sis said...

Was Elizabeth Warren representing the people when she got all cozy with the banking industry and made all that crony money? Or when she weasels her way into her cushy job by rigging up an Indian Paw Paw?

Zach said...

This is where the all purpose out comes into play. You give someone a pass because they're generally on the right side (ie, your side).

It's a vicious cycle that actually works better if the abstract principles are unworkable. You work your way up the hierarchy by viciously attacking people who deviate from the approved line (there will be no shortage, because the principles don't work). When you're at the top, you'll inevitably stray and be attacked yourself. You are forgiven -- but only because you otherwise submit.

wyo sis said...

Has Ms Warren defined middle class to your satisfaction yet?

RebeccaH said...

They are only "uneasy" about possibly being called to account for their blatant double standards.

Moneyrunner said...

The champions of the Little People, according to Cooke are Alan Grayson, worth between $31 and $77 million is one of the wealthiest members of the House. Elizabeth Warren (otherwise known as Fauxahontas) earned more than $700,000 from Harvard, book royalties and consulting fees, and lives in a $5 million house. Her investment portfolio is worth nearly $8 million. As Hugo Chavez showed by accumulating a $2 billion fortune, being a champion of the poor is a very lucrative occupation. All you need is a good scam, a bunch of useful idiots and you have it made.

Moneyrunner said...

I wonder what multi-millionaires Grayson and Warren are doing as the middle classes throughout the world are being destroyed by zero interest rates, a tsunami of new currency being created by central bankers and food prices keep rising while the Obama administration insists inflation doesn’t exist. I suspect that people with multimillion dollar portfolios really aren’t worried about whether the mortgage is due and there’s not enough money in checking.

jr565 said...

This is like in the movie Falling Down where Michael Douglas says at the end after he's holding his gf or wife (can't remember the details) hostage "I"m the bad guy? How'd that happen?"

Yes, you are the bad guys.

Strelnikov said...

"Divorced from its original context... the free-floating reasoning would lead to widespread confusion...."

The writer must have meant "wide spread pants filling".

Dan Francis said...

Secret memos like the one in this piece, or like the infamous memo by John Yoo/Jay Bybee and approved up the line to the President matters not ... I ask simply: Is this any way to run a country? Is there outrage? Yes, but mostly by those in power who get caught red handed and display outrage. They are pathetic and hypocritical and that's the worst part since they profess to speak for us, “we the people.”

I have a series of posts on this topic here about detainee handling and torture.

- FYI

bflat879 said...

Oh, I would love some enterprising news organization (do we have those any more) evaluate the Democrats views towards Bush's conduct of the war on terror, as compared to the "silence of the lambs" when it comes to Obama's.

Depressingly Obsessive said...


"By the way, this is one reason I voted for Obama in 2008.

It's easy to criticize from the outside.

Things look different on the inside, when it is your responsibility to protect the American people. "

I love reading your blog Professor even if I don't always agree with you, but that doesn't make any sense. Senator Obama criticized President Bush so you wanted him to know what it was like to sit in the big chair? I might do that with my children, or maybe give a young Sailor more responsibility than he can handle so he'll learn a little respect for his Chief or Leading Petty Officer, but never with too serious a matter. You wanted to teach foolish young Barack a lesson and so you thought giving him the Presidency was the way to do it? Please tell me I'm misinterpreting what you're saying?

Robert Cook said...

Heh. Some folks seem to think it's a "gotcha!" to point out that someone in Congress who appears to be trying to represent the people rather than the plutocrats has oodles of money! OMG!

Some folks are children. Or, in the case of the bankers, really shook up at the thought someone might really expect them to answer questions about their financial misdealings, so they try to discredit said congressional figures.

The only way Warren or Grayson will be discredited is through their own choices and behavior, through their willful failure to live up to what at present appears to be a committment on their parts to represent the working people of America against the predatory capitalists.

Nothing is written in stone, and either of them (or both) may ultimately disappoint, not through trying and failing, but through failing to try. Warren is brand new in Washington, and Grayson is just back after being out for two years. The judgement is still out on both them, but at least there is still a question, a potential they may try to serve the people. For most of their colleagues, the matter is long settled, and their colleagues have mostly of them decided to not be on the people's side.

jmatt said...

Laws are for Republicans.

jmatt said...

If the NYT is okay with Obama having an assassination list of Americans to be murdered without trial, he must have a good reason and it's all okay.

Laws are for Republicans.