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Blog Posted in avatar   Walter "Bruno" Korschek's Blog

The Constitution and Rule of Law - Mere Suggestions For The Rule Of Law

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By Walter "Bruno" Korschek
Posted Dec 23, 2011 in Politics
A recent article from the Wall Street Journal reviewed how dangerous Newt Gingrich could be if elected President relative to the laws and legal processes in this country. The article reviewed some of his extreme views and opinions on how to fix the American legal system, fixes that would appear to eviscerate the Constitution and place much too much power in the hands of the executive branch of government. His intentions, as described in the article, would eliminate the best institutional protections of freedom and liberty in this country available to its citizens, the Constitution and the Bill of Rights.
His views, if correclty captured by the article, could get any American to thinking about how the current resident of the White House, President Obama, has also not been very friendly to the Constitution and the rule of law either. In fact, if you review his short history as President, you see a disturbing trend of treating our rule of law doctrines and the Constitution as mere suggestions, to be used only when they do not interfere with his wishes and desires:
- His most blatant violation of the rule of law and the Constitution happened earlier this year when he committed U.S. military forces to the conflict in Libya without Congressional approval, likely in violation of the Constitution and the War Powers Act, both of which give Congress explicit power to control the war making action of this country.
The extent of this violation was nicely summarized in an article by Jacob Sollum in the October, 2011 issue of Reason Magazine, "War Counsel - Obama Shops For Libya Advice That Lets Him Ignore The Law." Remember, this conflict involved the U.S. military aircraft (over 3,500 sorties were flown by U.S. pilots) to bomb Libyan air defenses, U.S. drone aircraft firing missiles, providing intelligence and refueling services to other nation's participating int he conflict, and spending well over a billion dollars of taxpayers' money to participate in hostilities. There should be no doubt that Obama had engaged the United States in military "hostilities."
And that is exactly where the War Powers Act comes in. According to the article, this law requires that "a President who introduces U.S. armed forces into hostilities without a declaration of war must begin withdrawing those forces within 60 days unless Congress authorizes their deployment." The President was advised by the Justice Department's Office of Legal Counsel, his own Attorney General (Eric Holder), and Defense Department General Counsel (Jeh Johnson) that Obama needed to go get Congressional approval to continue the war effort.
Obama ignored the warnings of these experts and shopped around until he found a lawyer that agreed with him. He eventually found two, his own White House Counsel Robert Bauer and State Department legal advisor Harold Koh, both of whom maintained that our involvement in this Libyan conflict did not amount to "hostilities." Which is pretty laughable when you consider U.S. aircraft were bombing, U.S. military drones were firing missiles, and U.S. military support personnel were actively developing and providing intelligence to the hostilities in addition to refueling other nations' military weaponry. Apparently, it does not count as "war" in Obama's, Bauer's, and Koh's perverted reality unless the U.S. has physical military personnel on the ground in a war zone.
How absurd is this position and how illegal and anit-Constitutional is it? Consider some opinions that were highlighted in the article:
* Harvard law professor, Jack Goldsmith, who once was the head of the Office Of Legal Counsel: "The administration's theory implies that the President can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution's time limits."
* Republican Speaker of the House, John Boehner, and Democratic Senator Richard Durbin both stated that Obama's rationale for ignoring the War powers act failed the "straight face test," i.e. the rationale was so laughable that no one could possibly believe its legitimacy.
* The New York Times, which supported this "war" effort, editorialized and agreed that the administration's actions were an "evasion of its legal duties."
* In 2007, then Senator Barack Obama stated, relative to President Bush's Iraq war activities: "The law is not subject to the whims of stubborn rules," he condemned "unchecked Presidential power," and promised if that if he was elected, under his administration there would be "no ignoring the law when it is inconvenient."
All good reasons to reject Obama's laughable, shallow, flimsy, and illegal reasons for engaging U.S. military forces and taxpayer money in the Libyan conflict. This is not an indictment of whether our participation in that conflict was right. However, it is an indictment of this administration's blatant lack of respect for the Constitution and the rule of law that helps keep this country free.
But following the law would have been "inconvenient" for President Obama, something he abhorred four short years ago.
- But this administration's lack of respect for law and Constitutional rules does not stop at the Libyan border. Consider the disaster known as Fast and Furious, the botched gun running sting operation that was run by Obama's Justice Department and its ATF organization.
Fast And Furious involved U.S. Federal law enforcement authorities allowing and actually facilitating the illegal sale of military grade weapons to buyers in the United States and then illegally allowing these weapons to cross the border into Mexico into the hands of the powerful Mexican drug cartels. The hope, as flimsy as it was, was to track these weapons and then apprehend drug cartel members for their possession of illegal firearms. Yes, the program was as stupid as it seems.
Unfortunately, the ATF could not track the weapons once they were over the border, defeating the whole purpose of the operation. Even worse, the weapons have been involved in the death of at least one U.S. Federal agent, have been involved in the shooting deaths of dozens of Mexican civilians and were found in the armory of a leading drug cartel kingpin when his facility was raided by Mexican authorities. A flawed program that has gone fatally wrong.
However, besides the stupidity and unneeded deaths caused by the program, consider the numerous violations of existing laws that this Obama administration program has caused. Allowing the illegal purchase of these weapons and the illegal transportation of them across the border violates any number of existing U.S. gun laws. Allowing the transportation of them across the border violates at least one, if not more, international treaties that our government has signed to restrict and prevent the inter-country transportation of illegal weapons.
Apparently, the rule of law does not apply to our own Justice Department in this case, the very organization that is supposed to be upholding these laws and treaties.
- Who can forget the blatant ignoring of the law in the Solyndra fiasco. As a quick review, recall that the Obama Energy Department approved a half a billion dollar loan to a solar panel manufacturer, Solyndra, even though respected people both inside and outside of government publicly doubted that this was a good financial decision.
Turns out these people correctly foresaw the bad situation since within two years after receiving the loan guarantee, the company declared bankruptcy and went out of business. The only hope that the American taxpayer had of recovering even a fraction of the half of billion dollars was to exercise its legal right to be first in line when the bankruptcy proceedings sold off the remaining Solyndra assets. That was a condition of the loan guarantee: in the event of a Solyndra default, the Federal government lawfully got first crack at recovering money.
However, Obama's Energy Department illegally moved the Kaiser Foundation, another Solyndra investor, ahead of the American taxpayer in the bankruptcy proceedings. This action was done without the knowledge of the Justice Department who is supposedly responsible for enforcing the laws of the land like this one. As a result of this leapfrog move, any assets and money from the sale of Solyndra assets were used up before it was the American taxpayers' turn to receive anything. However, the Kaiser Foundation did recover much of its investment.
Oh, and by the way, the Kaiser Foundation has strong family links to a gentleman called George Kaiser. George Kaiser has been a very important, successful and prolific fund raiser for Obama's past political campaigns. Thus, the obvious implication is that the President allowed a very explicit law to be ignored to the benefit of one of his political friends and to the loss of the American taxpayer.
- Democratic President Bill Clinton enacted the Defense Of Marriage Act (DOMA) in 1996. The law was passed with widespread support by both Republicans and Democrats. In a nutshell, the law legally codified the inane concept that marriage can consist only if it consists of one man married to one to one woman. It basically said that same sex marriages did not have the same rights as man and woman unions.
A stupid, discriminatory law. The Federal government, and both political parties, should never be in the business of telling certain types American citizens how to live their lives and passing laws that restrict how those Americans run their lives This should be a blanket principle whether it concerns race, sex, creed, religion or sexual orientation of any American.
However, given how foul this law is, it is still the law of the land. According to Constitution, the President is required to enforce ALL of the laws of the land. If he disagrees with a law, there are legal and Constitutional processes to go through to change a law.
Which makes President Obama's decisions regarding DOMA another violation of the rule of law in this land. Earlier this year he unilaterally decided that his administration would no longer defend the law in court since the President did not agree with the tenets of the legislation. As a lawyer, he should understand that as President, he does not have the option and power to only selectively enforce laws he agrees with.
If he feels so strongly against this law, he should have moved to have it repealed long ago, possibly when his Democratic allies controlled both the House of Representatives and the Senate. It would have been quite easy to do so before he violated his Constitutional responsibilities when he alone decided he did not like the law.
Obama would probably not like it if President Gingrich decided to selectively and unilaterally ignore the Roe Vs. Wade right to abortion legality. He would probably not like it if President Bachman selectively and illegally decided not to prosecute abortion clinic bombers. The President does not have the right and power to be selective when it comes to the enforcement of laws currently in effect.
But as with Libya and the War Powers Act, this arrogance and dangerous flaunting of our Constitutional principles should not come as any surprise with this President.
- One of the truly basic foundations of our Constitution and our democracy is the phrase, "life, liberty, and the pursuit of happiness." In the face of this powerful concept of liberty, President Obama became the first President in our history to identify, name, and then assassinate an American citizen without the inconvenience of a trial to determine guilt.
Now, most would agree that the country is better off and safer with the death of Anwar al-Awlaki, an American citizen living in Yemen and one fo the most wanted terrorism leaders in the world. Earlier this year he was targeted and killed by Hellfire missiles launched from a remote controlled aircraft operated by the CIA. No trial, no grand jury, no presentation of evidence, just a remote controlled killing.
When the President's press secretary, Jay Carney, was asked to see what evidence the administration had on al-Awlaki regarding his terrorism activities, Carney responded: "I don't have anything for you on that." This is a very slippery slope relative to the Constitution.
If the President does not have, or deems not to share evidence of criminal activity, and wants us to only trust that he knows best what American citizen to assassinate, that newly created power, power that does not exist anywhere in our code of law or the Constitution could be so easily abused. Just the potential for sanctioned government assassinations makes "life, liberty, and the pursuit of happiness," the Constitution, and over two centuries of U.S. law equity become hollow, empty promises.
- At last count Obama had appointed about three dozen "czars" within his administration. This President is the first one to create a shadow government that exists totally within the White House.
By setting up governing structures outside of the Constitution, Obama can bypass the checks and balances established in the Constitution. These protective checks and balances tasked Congress with the responsibility for reviewing and approving the appointment of government officials in important government positions. This process has worked relatively fine for well over two hundred years and has protected our democracy from concentrating political power too heavily in one part of our government structure or with one individual person.
The czar process undermines this entire Constitutional history and process. The executive branch has specific duties and responsibilities, Congress has specific duties and responsibilities, czars should have neither.
- An October 10, 2011 Wall Street Journal article entitled, "Secret Orders Target Email," reported on another government process that certainly comes close to undermining the Constitution. The article was primarily about how the U.S. government and its Justice department had obtained a secret court order to force Google and another Internet provider to turn over email account information of a Wikileaks volunteer. As an American, one should be very suspicious when the words government and secret are in the same sentence.
Beyond this case of secret court orders, the article goes on to explain the unforeseen ramifications of the Electronic Communications Privacy Act which was passed by the political class in 1986. Although the law was designed to give the same privacy protections to electronic communications that were already in place for phone calls and regular mail. The way it was written apparently gives our politicians and our government the ability to monitor and obtain email communications, cell phone location records, and other digital documents without getting a search warrant or showing probable cause that a crime has already been committed.
Instead of the traditional "probable clause" criteria for obtaining a search warrant, the law allowed the government to only show "reasonable grounds" that the digital records might be"relevant and material" to an investigation. Thus, today in America, it is easier for the government to access into our electronic activities than it is for them to see our regular postal mail.
Also, under the 1986 law, these secret court orders are almost always sealed so an American being investigated by the government via a person's electronic activities may never find out the government was watching them. Tis past August, U.S. District Court judge Nicholas Garaufis correctly described the law as "Orwellian." This should be a reminder that just because a law is legal does not make it Constitutional or conducive to freedom.
- And finally, an example of "I heard what you said but I don't care what the rule of law is" from the Obama administration, this time as it regards the Gulf oil spill. After the oil spill, the Obama administration placed a drilling moratorium on new deep water oil drilling exploration in the Gulf in order to head off any potential additional olil spills in the near future.
However, after a while, oil companies and local politicians wanted the moratorium lifted In order to start drilling again and to expand business and employment. Court filings were issued and the judge in charge ruled that the moratorium be lifted. The Obama administration seemingly complied with the ruling but promptly issued another moratorium, virtually identical to the first one.
The following excerpt from a February Bloomberg report summarizes the contempt Obama and his Justice Department had for our rule of law:
* The Obama Administration acted in contempt by continuing its deepwater-drilling moratorium after the policy was struck down, a New Orleans judge ruled.
* Interior Department regulators acted with “determined disregard” by lifting and reinstituting a series of policy changes that restricted offshore drilling, following the worst offshore oil spill in U.S. history, U.S. District Judge, Martin Feldman of New Orleans ruled yesterday.
* “Each step the government took following the court’s imposition of a preliminary injunction showcases its defiance,” Feldman said in the ruling.
* “Such dismissive conduct, viewed in tandem with the re-imposition of a second blanket and substantively identical moratorium, and in light of the national importance of this case, provide this court with clear and convincing evidence of the government’s contempt,” Feldman said.
Determined disregard, defiance, dismissive conduct, contempt. Good adjectives describing the Obama administration's attitude towards our Constitution and rule of law, not only in the Gulf but across many areas of freedom and liberty in this country.

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