Greenwald on Bush, Obama, and OLC

Glenn Greenwald draws an interesting, if unfavorable, comparison between the actions of lawyers in Department of Justice under President Bush and President Obama.

Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney’s top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush — wanting to avoid that kind of scandal in an election year — agreed to “re-fashion” the program into something those DOJ lawyers could approve (the “re-fashioned” program was the still-illegal NSA program revealed in 2005 by The New York Times; to date, we still do not know what Bush was doing before that that was so illegal as to prompt resignation threats from these right-wing lawyers).

That George Bush would knowingly order an eavesdropping program to continue which his own top lawyers were telling him was illegal was, of course, a major controversy, at least in many progressive circles. Now we have Barack Obama not merely eavesdropping in a way that his own top lawyers are telling him is illegal, but waging war in that manner (though, notably, there is no indication that these Obama lawyers have the situational integrity those Bush lawyers had [and which Archibald Cox, Eliot Richardson and William Ruckelshaus had before them] by threatening to resign if the lawlessness continues).

Greenwald also ponders why the Obama Administration never went to Congress. During the Bush Administration, the White House did not seek Congressional approval of some anti-terror initiatives because some within the Administration — most notably, Dick Cheney — wished to establish the principle that the Executive could act unilaterally to address national security concerns. This approach was unwise, but it is easy to understand. But what is the explanation here? It is hard to see what larger legal principle the Administration is trying to vindicate.

UPDATE: What principle is the Administration vindicating? One possibility, suggested in the comments, is the principle that approval by a multinational entity (the UN, NATO, etc.) should be sufficient to authorize U.S. military action. One data point in support of this theory is the line of division within the Administration: attorneys at Justice and Defense versus Koh at State.

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