John Boehner Gets One Right

Pay attention, because this doesn’t happen very often. John Boehner got one right.

Earlier this week, the Obama administration issued a 38-page report to Congress arguing that the ongoing NATO operation in Libya did not require Congressional approval under the War Powers Act because “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.” True, the operation has cost $716 million already, but that’s not really at issue—except, of course, that the money in question has to be authorized by Congress whether the mission does or not. At issue, apart from political posturing and no little hypocrisy from both sides, is the definition of “hostilities” as described in the War Powers legislation, a semantic delineation which has never been made by either Congress or the courts.

It is perhaps ironic how quickly roles have been reversed here: among the chief critics of the Obama administration is the former head of the Bush Justice Department’s Office of Legal Counsel, which may have been the smarmiest collection of sycophants ever assembled in a single federal office. Meanwhile, the Obama administration is distorting language fully as much as the Bush minions did in defending water-boarding.

As Charlie Savage and Mark Landner write in the New York Times,

The escalating confrontation with Congress reflects the radically altered political landscape in Washington: a Democratic president asserting sweeping executive powers to deploy American forces overseas, while Republicans call for stricter oversight and voice fears about executive-branch power getting the United States bogged down in a foreign war.

I’m going to leave aside the merits of the Libyan exercise itself: it is a complex issue, with legitimate arguments about moral imperatives on one side and equally persuasive arguments about lack of compelling national interest on the other. Rather, I want to concentrate on the question of whether the ongoing operations in Libya require Congressional approval. Yes, they do.

The administration’s case, one which ignored the objections of Jeh C. Johnson, the Pentagon general counsel, and of Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, is founded on three independent premises, none of which stand up to much scrutiny. The first is that an offensive mission involving drone attacks, sustained bombing, and occasional casualties doesn’t really constitute “hostilities.” The second is that, despite the fact that participation in a NATO-run, UN-sanctioned, mission to protect civilians has morphed into an aggressive attack on Colonel Qaddafi’s compound, the military and geo-political missions have not merged. The third is the apparent assertion that since the mission has taken longer than expected (and that’s never happened before, right?), we should really only be looking at how long the campaign was supposed to last. Add to that the extreme rarity of any White House over-riding the opinion of the Office of Legal Counsel, and the Obama administration has a mess on its hands… or perhaps on its shoes, because they’ve really stepped in something.

There’s even a lawsuit by ten members of Congress, led by leftie Dennis Kucinich, which seeks:

injunctive and declaratory relief to protect the plaintiffs and the country from the (1) policy that a president may unilaterally go to war in Libya and other countries without a declaration of war from Congress, as required by Article I, Section 8, Clause 11 of the United States Constitution; (2) the policy that a president may commit the United States to a war under the authority of the North Atlantic Treaty Organization (NATO) in violation of the express conditions of the North Atlantic Treaty ratified by Congress; (3) the policy that a president may commit the United States to a war under the authority of the United Nations without authorization from Congress; (4) from the use of previously appropriated funds by Congress for an unconstitutional and unauthorized war in Libya or other countries; and (5) from the violation of the War Powers Resolution as a result of the Obama Administration’s established policy that the President does not require congressional authorization for the use of military force in wars like the one in Libya.

Most observers believe the lawsuit will go nowhere, and that it represents more of an opportunity to get the complainants’ names in the paper than anything else, but it’s still an intriguing collection of Congresscritters, including Kucinich and John Conyers from the hard left, Walter Jones (remember “freedom fries”?) and Dan Burton from the equally hard right, and Ron Paul (who fancies himself a strict Constitutionalist and sometimes actually is).

But of course, it’s Speaker Boehner whose opposition matters most. It is no doubt true that Mr. Boehner would not be so critical of a Commander-in-Chief of his own party. It is also true that, this time, he’s right: sneeringly describing through a spokesperson Obama’s case as “creative,” then arguing (in his own words) “It just doesn’t pass the straight-face test, in my view, that we’re not in the midst of hostilities,” and subsequently asserting “The White House’s suggestion that there are no ‘hostilities’ taking place in Libya defies rational thought.”

What boggles the mind here is not the fact that Boehner would be critical of Obama, or that there would be debate about whether the administration’s strategy with respect to Libya is the correct one. Rather, one must wonder at the political ineptness of the President and his team—if you can’t convince this Congress that continuing the Bush administration’s policy of “exporting democracy” is a good idea, if you can’t make a case for fulfilling obligations authorized by the UN and NATO, if you can’t justify the mission in general terms, then scale back the offensive maneuvers, at the very least. More importantly, this silly rhetoric in defense of non-existent executive authority has lent legitimacy to the GOP's hitherto largely fallacious talking points about lack of consultation. And for what? The opportunity to spend a few more hundreds of billions of dollars to drop bombs on Libyan civilians? That really does sound a little too much like the Bush administration.

It takes more than a little ineptness to make John Boehner look good by comparison. The Obama administration has succeeded in doing just that.

Strange Bedfellows

One of the signature characteristics of the Tea Party movement during the last election was its utter disregard for intellectual consistency. This phenomenon took different forms in different moments and different places, of course. There was the sudden concern about the deficit that few Tea Partiers had given the slightest notice with respect to, say, the $1,000,000,000,000+ spent on the Iraq and Afghan wars. There was the outrage that President Obama was a socialist (or was it a Fascist? it’s so hard to keep up) because of the bank bailout (which, of course, happened in the Bush Administration)… but actually collecting on a mere fraction of the debt legitimately owed to the American people by the callous and venal operatives of BP in the wake of the Gulf disaster would be similarly socialistic.

There were the cries of anti-Americanism against anyone who didn’t share their jingoism, even as they claimed their movement was primarily if not exclusively economically motivated. Finally, there is the completely ginned-up and astroturfed outrage that gives the party its name (Taxed Enough Already), when the overwhelming majority of us pay less in taxes now than during the George W. Bush years, and the overall tax rate is lower than at any time since the Eisenhower administration. In short, the average Tea Partier has always been readily, and not altogether inaccurately, characterized as equal parts ignorant, stupid, gullible, and arrogant.

The GOP was happy to have the energized base and claims to populism, even if the outrageousness of Tea Party candidates may have blunted Republican gains in the 2010 elections (my post-election analysis here). The traditional party hierarchy, that gaggle of white Christian men (oh, and one token white male Jew), paid lip service to Tea Party concerns, but underestimated the fledgling libertarian movement’s desire for a quid pro quo in terms of roles in leadership and, indeed, policy decisions.

Now it turns out that at least some of the Tea Party-backed House freshmen, in alliance with intellectually honest libertarians in the GOP, are making some waves. I’m not talking here of the paranoid delusions professed (notice I didn’t say “believed”) by the Michele Bachmanns and Glenn Becks of the world. What completely baffles the Republican Old Guard is that, unlike their own rhetoric, that of the Tea Party is sometimes… wait for it… sincere.

I can’t blame the GOP leadership too much—I was caught off guard, too. But here are two stories that suggest that there are members of the Republican Party who actually believe in limited government.

First is the first significant (because unexpected) defeat of the new GOP leadership in the House of Representatives. Speaker John Boehner figured there wouldn’t be any problem getting the required 2/3 majority to fast-track the extension of three of the more perfidious provisions of the Patriot Act, that utterly unnecessary, invasive, and oft-abused paean to Bush-era fear-mongering. Boehner guessed, correctly, that there were enough Democrats who either really were Big Government proponents or were sufficiently gutless that they’d cave on any issue if the opposition merely intoned the magical incantation, “National Security.”

What the Great Orange One didn’t count on was that, whether because of, despite, or independent of the prodding of Dennis Kucinich, who specifically courted “members of the Tea Party who came to Congress to defend the Constitution,” some 26 GOP Representatives, including seven Tea Party-supported freshmen, broke ranks and actually voted against an over-reaching government. The Patriot Act itself, of course, was an insidious intrusion into the lives of citizens against whom there isn’t enough evidence to get a warrant, even though every cop and every prosecutor at every level knows at least one judge who would grant such a warrant based on the merest whiff of speculative evidence.

To be sure, there are many lessons to be learned here, including the fact that the Obama administration has failed once again to overturn the transgressions of their predecessors: politicians like power. Moreover, this victory for civil liberties is, of course, likely to be short-lived, as the proposal will be back ere long in a different form, requiring and no doubt receiving a mere majority vote. It is certainly possible, too, to overstate the role of Tea Partiers and indeed of Republicans in general in the outcome of the recent vote: Democrats are in the minority, but over four times as many of them as Republicans voted not to extend the law. Furthermore, nearly 85% of the official membership of the Tea Party caucus voted in favor of the extension. An administrator of the Facebook group Americans Against the Tea Party stated flatly that the “Tea Party did not help defeat the extension of the PATRIOT Act.”

Still, when a bill comes up seven votes short of passage and at least that many self-described Tea Party members voted “nay,” it would be petulant and unfair not to give them some of the credit—after all, the Democrats, from a President who seems to find the Constitution nearly as inconvenient a document as his predecessor did, on down through the House rank and file, nearly 70 of whom couldn’t be enticed to vote against extending the worst law in recent memory, didn’t exactly cover themselves in glory.

The second stirring of the libertarian wing of the GOP (I’m not sure if the individuals involved identify as Tea Partiers or not) comes from the state legislature in Wyoming, where two state representatives, unsurprisingly both female, went toe to toe with someone Rachel Maddow aptly calls a “culture warrior, a big, intrusive government statehouse member by the name of Bob Brechtel.” Mr. Brechtel introduced a bill which would not merely allow but to demand governmental interference in women’s decisions about whether or not to have an abortion: to require doctors to tell them they have a right to see an active ultrasound, to tell them a bunch of medically suspect claims about fetal pain, to insist on a 24-hour waiting period between the consultation and the procedure, etc.—the usual attempts to add a little more misery to young women who are already faced with a harrowing decision in medical, ethical, and pragmatic terms, in other words.

Enter Representatives Lisa Shepperson and Sue Wallis. There’s nothing particularly new about what they have to say: that medical consultations are and ought to be “the most private thing you can imagine” (Shepperson), and that, since every case is different, “our ability as free moral agents cannot justify these broad strokes” (Wallis). Wallis did tell of her own abortion decision, which came on the heels of a bout with cancer. That humanizes the discussion, to be sure, but women like Ms. Wallis have courageously been telling their stories in such venues for years.

What separates these women’s speeches from those we’ve heard a thousand times before, however, isn’t merely that they’re coming from elected Republican women, although that’s part of it. I confess that I can’t remember the last time I’ve heard this rhetoric from that source. But what’s really significant to me is that both these legislators crafted their arguments by appealing to beliefs the GOP purports to value: small government and individual responsibility. It’s an argument that’s needed to be made, in the same way that Ted Olson’s persuasiveness, not simply as a very good lawyer, but indeed as a Republican has been instrumental in overturning DADT.

What’s more, they succeeded, in an overwhelmingly Republican state with a legislature to match, in defeating Brechtel’s bill. He has re-introduced it, but in a watered-down form, devoid of the most invasive provisions. It will probably pass, the same way the Patriot Act will almost certainly be rammed through Congress by a coalition of bigots, faux law-and-order types, and Big Government megalomaniacs of both parties. But—and, unfortunately this counts as a win in today’s political climate—it won’t be as bad as it might have been.

But these stories, even if they represent only a delay or a slight dilution of horrible legislation, do have meaning. They remind us that the Republican Party is every bit as “Big Government” as their Democratic counterparts—they just want a different big government. Don’t hold your breath to see anything that looks like a real balanced budget coming from these guys: there will be cuts to education, to the arts, the PBS/NPR, to financial aid, to salaries for state, federal and local employees like cops and teachers (and university professors), possibly even to Social Security. But don’t expect that totally useless missile system to get scaled back, or that modest tax increase on the ridiculously wealthy to levels still lower than during the Reagan administration to be enacted. Don’t think the GOP will pass on an opportunity to spy on you without any real reason, to criminalize your sexuality, or to deny your right to worship as you please unless you thump the Bible with both hands.

Some six years ago, when Samuel Alito had just been confirmed as a Supreme Court Justice, I wrote in my old blog that “it's just possible that Mr. Alito is in fact a jurist of ‘steady demeanor, careful judgment and complete integrity,’ just as President Bush described him. Wouldn't that spoil Bush's day!” I’m having another of those moments today. I think there are more legitimate uses of government than true libertarians do, but their position is at least logically and ethically consistent.

GOP leaders from Reagan to Bush to Boehner and McConnell, however, see small government as more of a bumper sticker than a philosophy (to be fair, it’s a better slogan than “Tax Breaks for Millionaires and Spies in Your Bedroom”). Whether the true small government advocates on the right will be willing to join forces with civil libertarians on the left on an ongoing basis remains to be seen. But, given the policy disputes that might be affected by such an alliance—abortion rights restrictions, gay marriage, the continuing saga of DADT—the old adage that “politics makes strange bedfellows” has never seemed more apt.

Piracy is a bad idea.

Whereas the disaster in the Gulf of Mexico remains the dominant news story of the past week or so, events in the waters off the Gaza strip also command attention. There have been two separate rounds of Israeli attempts to thwart relief ships attempting to break the blockade on marine access to Gaza and deliver everything from medicine to toys to cement. The second round, involving the ship the Rachel Corrie, went more or less “as planned”—both sides emerge with some dignity, and it’s even possible that the relief materials will find their way to the suffering people of Gaza. Let’s consider that first encounter, however.

OK: background, caveats, and common ground. Can we all stipulate a few things?

1). The Israeli government has reason to be nervous that Hamas is in charge in Gaza.

2). Hamas is the democratically elected government of that region. (Remember, they defeated Yasser Arafat’s Fatah party, so it’s not like there’s a lot of pro-Israeli sentiment in the area.)

3). Uncritical acceptance of the testimony of absolutely anyone associated with these events is folly.

4). As Jon Stewart put it, 

Whatever you may think of the respective leaderships, the Israelis or Hamas, whatever gods you pray to or whatever direction you may pray to them in, if you can’t even look at Gaza and agree that there is suffering there that needs to be alleviated, no matter who’s to blame for it, then your heart is so dead that tourists flock there to float their backs in it. 

(This in response to Charles Krauthammer’s commentary—described aptly by Stewart as “the stupidest f*ing thing anyone has ever said about the Middle East, ever”—that there is no humanitarian crisis being addressed by the flotilla: “there’s no one starving in Gaza.”)

5). No matter how sensible some parts of the blockade may be, you just look silly if you’re spending your time stopping shipments of wheelchairs and Pokemon toys. Indeed, the list of what is banned and what isn’t would strike most observers as more than a little arbitrary. Edmund Sanders of the Los Angeles Times, citing Gisha, an Israeli advocacy group which opposes the blockade, writes that “Cinnamon is allowed, but coriander is banned…. Oil is OK, but not vinegar. Canned fruit is prohibited, but not canned vegetables.” Perhaps there is some internal consistency here which I am too dim-witted to comprehend?

6). If you’re trying to run a military blockade, there’s likely to be trouble.

7). The people on the boats that comprised the flotilla included some pro-Hamas and/or anti-Israeli agitators.

8). The people on the boats that comprised the flotilla included some humanitarians who didn’t give a damn about who had done what to whom, only that people needed help.

9). The headline-making events of recent days occurred in international waters when Israeli commandos attempted to board the ships of the relief flotilla.

10). The loss of nine lives, however risky the behavior of the victims may have been, is indeed tragic. Even the Aristolelian in me is satisfied, as what transpired was completely within the realm of human agency—no “Act of God,” here.

N.B. I have tried, in the above descriptions, to avoid loaded language (with the exceptions of agreeing that Krauthammer’s comments were stupid even by his standards and questioning the rationale behind what is quarantined and what isn’t). I realize, however, that words like “humanitarians” and “victims” aren’t necessarily neutral.

Let me stipulate further that I think the blockade is more of a bad idea than a good one, in terms of both policy and politics. In policy terms, it aggravates an already bad situation. Isolation imposed from the outside—whether we’re talking about North Korea or Cuba or apartheid-era South Africa—tends to affect the have-nots more than the haves. Applying sanctions might make us feel good that we’re doing something, but such a strategy seldom succeeds in effecting the kind of change in policy positions it sets out to accomplish. What does happen, however, is that the general population suffers even more than they had previously.

Which brings us to the political realm… when Hamas first came to power, I wrote in my old blog that it was “put up or shut up time for them.” They were faced with two choices if they wanted to retain control: govern (and govern well) or renounce the allegedly democratic principles which brought them to power. Or so I thought at the time. I overlooked the possibility of an Israeli initiative which would allow Hamas to pass the blame—legitimately, or with at least a claim to legitimacy—to the very government they so vehemently oppose. One of the central claims of Hamas is that Israel is an oppressive regime relative to Palestinians; legitimizing those claims doesn’t strike me as a particularly shrewd political strategy on the part of the Israeli government.

Any problem in Gaza, especially in terms of infrastructure and social services, now can reasonably be ascribed to the effects of the blockade rather than to Hamas’s own failures to provide for their constituents. (I am reminded of one of my favorite plays, Largo Desolato by Václav Havel, who knew something of political repression: in that play the dissident intellectual protagonist is broken by the removal of the threat of being sent to the Czech equivalent of the Gulag.) So no, I don’t think the blockade is a good idea. But I do understand the rationale for it and the fact that similar policies have been adopted by other governments, including our own, on many occasions. In other words, reasonable people can disagree about the blockade per se.

And, as suggested by #3 above, we’re not likely to get a lot of clarity from either eye-witness testimony or heavily-edited videotape on many of the details of what, exactly, happened Monday, especially on the Turkish-flagged Mavi Marmara, on which nine passengers were killed, allegedly for attacking Israeli commandos. The passengers were or weren’t armed, the soldiers did or did not start firing before even reaching the deck of the ship, and so on. Moreover, while it is possible that all those killed were actively confronting the Israeli soldiers, history suggests otherwise. Remember Kent State, where one of the victims was an ROTC cadet walking to class over 100 yards from the nearest National Guardsman? Not exactly an aggressive anti-war protester there.

But let’s accept, for the sake of argument, the essence of the Israeli government’s argument. The soldiers boarded the ship, were attacked by the passengers, and defended themselves with lethal force. All the dead were among those employing knives, projectiles, or whatever else, to prevent the IDF forces from taking control of the ship. Even with that spin, we are left with one very central question: SO FREAKING WHAT?

No one disputes that these events took place not in Israeli waters but in the open sea. What happened, then, is that armed men attempted to seize control of a legal vessel in international waters. Maybe the vocabulary changed when I wasn’t paying attention, but I seem to remember a term for that: piracy. Then, having shot up the joint when the passengers resisted, they claimed they were attacked. As MJ Rosenberg writes, “This is like a carjacker complaining to the police that the driver bashed him with a crowbar that was under the seat. Neither carjackers nor hijackers should expect their victims to acquiesce peacefully.” Note: had these events occurred in Israeli waters, they wouldn’t have been any more intelligent or less tragic, but they might at least have been construed as legal.

One of the dead turns out to be a young man with joint Turkish and American citizenship, Furkan Dogan, who was shot five times, four in the head. I can’t improve on James Wolcott’s commentary: “I'm not a trained commando, unlike so many others with blogs to their names, but four shots to the head strikes me as possibly a trifle de trop.”

The worst case scenario in real terms for Israel involves additional tension in its relationship with the US (its principal ally) and with Turkey (the closest thing it had to an ally in the region). Israel’s armed forces and the government that commands them are portrayed as trigger-happy ghouls. The policies of Prime Minister Netanyahu (in particular) with respect to Gaza stand to be condemned by the international community writ large rather than simply by those states already opposed to Israel. That Israel is often unjustly isolated internationally is no doubt true; that in this instance they deserve to be ostracized is, to me, equally undeniable.

I disagree—around the edges, at least—with Rosenberg, who says, 

the intention of the activists on board the ships was to break the Israeli blockade. Delivering the embargoed goods was incidental. In other words, the activists were like the civil rights demonstrators who sat down at segregated lunch counters throughout the South and refused to leave until they were served. Their goal was not really to get breakfast. It was to end segregation.

I think breaking (if by “breaking” we mean “ending” as opposed to “circumventing”) the blockade may indeed be the principal medium-term objective, but that doesn’t minimize the shorter-term intention of making sure relief aid does in fact reach its intended recipients, or indeed the longer-term goal of achieving both autonomy and some reasonable standard of living for the Palestinian people.

Even the best case scenario for the Israelis is a PR disaster, made worse rather than better by the excuse-making of Netanyahu and his minions in the media, especially in this country: because the arguments are so palpably fallacious. Look, mistakes happen. Sometimes they’re completely honest mistakes (that umpire’s call that cost a pitcher a perfect game, for example), sometimes they’re less innocent (e.g., the intervention of a school principal into the artistic qualities of a mural championing environmental issues) but reasonable people forgive human frailty in all its manifestations, even in situations like this, in which lives were lost. Provided, that is, that there’s an apology issued with some hint of actual remorse: someone was sorry for what s/he’d done, not just for being caught. This is why everyone is angry at BP right now: no rational person believes Tony Hayward or his minions give a crap about anything but their corporate profits.

But Netanyahu does Hayward one better: he doesn’t even bother with the insincere contrition; he actually defends the screw-up. And let’s be clear: the best case scenario from the Israeli perspective is that they sent out commando teams carrying military-grade weaponry, but provided the soldiers with neither the tactics nor the provisions to employ non-lethal force. Indeed, they apparently never even considered the possibility that people willing to run a blockade might be willing to resist an assault against them. In other words, this was not merely a public relations and political disaster, it was a catastrophe in military terms.

I find it curious (but not, alas, surprising), then, that so many in this country are willing to defend what to me is at best a variation on Kent State: an over-reaction perpetrated by under-trained kids with assault rifles. I know of literally no one in this country who defends everything our own government does—go ahead, name someone who endorses warrantless wiretaps, the bank bailout, Obama’s healthcare bill, and the federal government’s response to both Hurricane Katrina and the BP disaster. But there is a bizarre little alliance of many Republicans (especially but not exclusively the Religious Right) and some American Jews who are prepared to defend any action of the Israeli government, whichever party happens to be in charge there. 

Witness Shmuel Rosner, writing in Slate: “The soldiers were surprised by a mob; they saw their friends being lynched; they acted as any soldier would have and should have acted. To save their fellow soldiers, they opened fire.” Lynched?!? Give me a damned break. The guys with the assault rifles who attacked the ship were being “lynched” by civilians armed with… uh… jack-knives and hammers? Curiously enough, the victims of this “lynching” sustained two “moderate” injuries; the alleged perpetrators: nine dead and multiple injuries. Somewhere, perhaps, there is a parallel universe in which Mr. Rosner’s argument is coherent. I pray I never visit there.

But amidst the nattering and the silly condemnations of President Obama—not for an egregiously tepid response but for the temerity to suggest that the slaughter of civilians (including an American) is a “tragedy”—there is at least one voice of reason… Dennis Kucinich. I urge you to read his letter to President Obama in its entirety, but here’s the most important section: 

It is not acceptable to repeatedly violate international law. It is not acceptable to shoot and kill innocent civilians. It is not acceptable to commit an act of aggression against another U.S. ally. It is not acceptable to continue a blockade which denies humanitarian relief. It is not acceptable to heighten tensions in a region while the United States continues to put so much blood and treasure on the line.

Now, why is it that someone as ethically clear-headed, rhetorically skilled, and passionately humanitarian as Kucinich can’t attract votes even from Democrats at the national level? Oh, yeah, that’s right—he’s kind of funny-looking.