roadkillrefugee's posterous

Charlie Savage's front page story in the December 30, 2011 New York Times asks the Republican presidential candidates about their views on executive power in what is essentially a sequel to his own interview with candidate Obama in 2007 when Savage worked for the Boston Globe.  As soon as the Obama administration began to provide air support to the Libyan rebels seeking to overthrow the Libyan dicatator and terrorist Gadaffy, Savage began to misrepresent his 2007 interview with then Senator Obama as some kind of Pulitzer-worthy "gotcha" moment.  

While the December 30 article purports to be about the Republican candidates' views on executive power, its primary focus is to reaffirm Savage's broader narrative of President Obama: that he is just like Bush when it comes to civil liberties in the era of global terrorism. What this October 30th article helps reveal, however, is the theory of executive power that Savage is holding Obama up against is a discredited libertarian notion of weak executive power shared by Ron Paul and Glenn Greenwald views which have no support in constitutional law jurisprudence. Savage also sets up the presidency of George W. Bush as the sole baseline by which to judge the Obama administration's use of executive power, while ignoring all of Bush's recent predecessors.

How Savage Shifts from the GOP Candidates to His Anti-Obama, Libertarian Narrative.

Read the rest of this post »

Critics of the White House’s decision to determine that the current actions in Libya do not constitute “hostilities” for purposes of the War Powers Resolution are either deliberately making political attacks not based on the law or fact, or they are misinformed.  The president’s decision to solicit views from the Department of Defense, the DOJ’s Office of Legal Counsel, the State Department’s Office of the Legal Adviser and the White House Counsel was lawful and reasonable.  It was also lawful and reasonable for him to make his own decision after hearing differing legal views on the question and he had no obligation to defer to the OLC viewpoint over the others.

There is no mention in the Constitution of the Office of Legal Counsel.  It has no constitutionally defined role to “canvass” legal opinions from expert agencies in the federal government and to issue opinions that restrain the president.  OLC primarily opines on other federal agencies’ compliance with federal law, often at the request and in furtherance of the policy priorities of the president, resolve disputes between federal agencies, and to advise the attorney general and president. 

OLC’s authority to issue opinions that bind the Executive branch is misunderstood and overstated.  OLC works for the attorney general, and has a tradition of working closely with the White House, including the White House Counsel’s office.  For example, Bill Barr, head of OLC under President George H.W. Bush, worked very closely with White House Counsel C. Boyden Gray (Barr later became Attorney General under Bush).  Both the Attorney General and the White House Counsel serve at the pleasure of the president.  An example of a formal OLC opinion might be a federal agency’s prospective assumption of a liability, and whether doing so would be compliant with a federal fiscal law.  If OLC opines that the assumption of liability is not permitted under the law, the federal agency will follow OLC’s opinion.  In this sense, OLC’s opinions are “politically” binding on the Executive branch.  The courts will not intervene to enforce the OLC opinions.  In addition, since the Executive branch controls enforcement and prosecution of federal law, nobody who follows an OLC opinion in good faith should expect to be prosecuted, but those who fail to can expect demotion, termination or even prosecution.  OLC is not in the business of rendering opinions that broadly restrain the president’s authority.  It will opine on specific legal questions requested by the president, but they are not “binding” on the president in the sense that he is constitutionally obligated to follow them, or that in the same sense that other federal agencies are politically bound to follow them.  That is a central point of confusion in the media  – OLC’s role with respect to other federal agencies is fundamentally different than its role with respect to the president (essentially the difference between managing down and managing up).

The War Powers Resolution is a law that was passed over President Nixon’s veto in 1973.  Government lawyers, judges and litigators interpret statutes for a living. When a question of statutory compliance arises, lawyers read the statute for guidance.  If the face of the statute is unclear, they may also look to the legislative history of the statute to understand the intent of Congress when it wrote the law.  The issue of whether the Obama administration is obligated to seek Congressional authorization under the War Powers Resolution depends on whether the action in Libya currently constitutes “hostilities” within the meaning of the statute.  If the actions do not constitute hostilities within the meaning of the Resolution, then the law doesn’t apply.

Now you have undoubtedly heard all sorts of spin about this.  Boehner frames the issue as if we’re only dealing with the term as commonly understood and not as used in the statute, “It just doesn't pass the straight-face test, in my view, that we're not in the midst of hostilities.  Now that doesn’t even pass the smell test.”  Yes, clearly there are hostilities going on in Libya, and clearly we are playing some role in Libya.  Neither of those points is in dispute by the Obama administration, as he well knows.  The issue is whether the U.S. actions are enough to trigger the Congressional consent element of the Resolution.

Since the law was enacted, OLC has only directly addressed the Resolution’s constitutionality once:  on February 12, 1980, the last year of the Carter Administration.  It looked at a number of aspects of the law, including what constituted “United States Armed Forces” for purposes of the law (and determined that military personnel under the direction of the CIA are not covered by the WPA).  And it covered what constituted “hostilities” for purposes of the Resolution. 

The Carter OLC looked to the legislative history of the WPA, which revealed that the State Department and the Departments of Defense played significant roles in the legislation.  The two departments testified before Congress that the term “hostilities” is “definable in a meaningful way only in the context of an actual set of facts,” but as applied by the Executive, the term included: “a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces, and “imminent hostilities” was considered to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces.  In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area.” 

The Carter OLC concluded, “We agree [with State and DOD] that the term “hostilities” should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad.  Such situations do not generally involve the full military engagements with which the Resolution is primarily concerned.  For the same reason, we also believe that as a general matter the presence of our armed forces in a foreign country whose government comes under attack by ‘guerrilla’ operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to ‘command, coordinate, participate in the movement of, or accompany’ the forces of the host government in operations of such guerrilla operations.”

Neither of the scenarios described above precisely fits the current circumstances in Libya – sporadic attacks on troops stationed abroad or the presence of armed forces in a foreign country under attack by guerrilla operations unless we were running or significantly assisting the counter-attack operations of the host government.  But what is directly on point is OLC’s conclusion that the Resolution was intended to cover full military engagements rather than circumstances where U.S. armed forces are not actively engaged in exchanges of fire with opposing units of hostile forces.

According to Charlie Savage and Mark Lander’s June 15^th story in the New York Times, the report submitted to Congress by the Obama White House concluded that the Resolution was not applicable to Libya 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.”  Now you can see why the White House legal reasoning was coming from – the Obama White House was relying on the Carter OLC opinion. 

Savage and Lander went on to report what Harold Koh said in an interview about the White House’s report to Congress: 

“The two senior administration lawyers contended that American forces had not been in “hostilities” at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to primarily a supporting role — providing refueling and surveillance to allied warplanes, although remotely piloted drones operated by the United States periodically fire missiles, too.

They argued that United States forces are at little risk because there are no troops on the ground and Libyan forces are unable to exchange fire with them meaningfully. And they said the military mission was constrained by a United Nations Security Council resolution, which authorized air power for the purpose of defending civilians.

‘We are not saying the president can take the country into war on his own,” said Mr. Koh, a former Yale Law School dean and outspoken critic of the Bush administration’s expansive theories of executive power. ‘We are not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.’”

There’s an interesting dynamic at work here, where hear of the divergent viewpoints and assume Harold Koh must be a hack Obamabot and Caroline Krass, acting head of OLC, must a paragon of legal virtue.  Well, this might surprise you: Krass was a lawyer in the Obama White House before she moved to OLC.  She was Associate Counsel to the President for National Security Affairs.  So let’s say her view had come out the other way – wouldn’t the fact that she was a former Obama White House lawyer cause you to suspect she was a Obama loyalist just trying to please her boss (as some have dismissed the supportive opinion of White House Counsel Robert Bauer for that very reason)? (By the way, for those conspiracists who speculated Obama secretly didn’t want Dawn Johnsen to get confirmed as head of OLC, the fact that he knowingly placed a critic of Executive power like Krass in place as the acting head of OLC should put those theories to rest).

Meanwhile, Harold Koh is considered one of the leading legal minds in the country.  He has three tours of duty in government – first as a young career attorney advisor in OLC, then as a political appointee in the Clinton Administration’s State Dept, and now as the State Department Legal Adviser. Actually, he has had four tours of duty if you include his Supreme Court clerkship with Justice Harry Blackmun.  That’s right, Koh chose to apply to work for one of the leading liberals of the modern Supreme Court; the author of Roe v. Wade. Koh has been outspoken critic of executive power, even filing a brief challenging the legality of President George H.W. Bush’s Persian Gulf War, and critic of the second President Bush’s torture practices. He has also been a champion of civil and human rights.  Despite this, I’ve heard several instances where his lifetime record as a stalwart champion of civil rights and liberties, and a critic of expansive executive power, has been dismissed because people didn’t like the outcome and assume a sham process was employed.

So to recap, the White House was never obligated to only listen to OLC and to no other government lawyers regarding the applicability of the Resolution to Libya.  DOD and State were the two expert agencies on the issue, having played a role in the Resolution’s enactment, and their legal views were highly relevant.  The White House was never obligated to defer to the acting head of the OLC’s view regardless of her conclusion.  (Quick aside, AG Holder ignored a formal opinion of OLC in April 2009 that found a DC voting rights bill unconstitutional.  He instead went to the Solicitor General’s office, which found it constitutional, and followed its opinion.  Recall that many on the Left who are criticizing the process now had no complaints in 2009.)  The legal issue is a legitimate one to which reasonable lawyers can disagree.  It will never be reviewed by a court in any event (it would be considered “nonjusticiable”).  The President had every right to break the tie among the four lawyers and make his own decision.  That is his job in any number of situations.  Recall that his national security advisers were not unanimous on the plan to get Osama bin Laden.  Arguments that this decision-making process is like George W. Bush and Dick Cheney’s manipulation of OLC to secure a favorable view of waterboarding requires turning the facts on their head.  There is no evidence that President Obama pressured Krass or DOD’s general counsel in the least.  The White House hasn’t hidden the fact that these four advisers had different views.

Finally, note that this whole issue is intensely political.  You have Republicans who earlier in their careers (in the mid-90s) tried to repeal the Resolution now demanding Obama follow it in this case.  You have Democrats and Republicans who have publicly stated they support the actions in Libya, and who could introduce legislation to authorize the action in Libya any time they want, sitting on their hands like cowards.  This is much ado about nothing. 

[UPDATED BELOW: 4/15/11; Originally Posted 4/9/11]

So who won the budget shutdown standoff – Obama or Boehner?  Interestingly, it seems the more partisan the pundit, right or left, the more they think their own side lost.  This probably is a reflection of how the more partisan you are, the more you value what your side conceded, and therefore the angrier you are over the budget deal.

As a card carrying member of the left side of the aisle, I’m not buying the arguments from the pundits on the left that insist Obama “lost” this battle with Boehner.

In any negotiation, it's all about leverage. If you don't have it, you need to manufacture it to level the playing field. If you do have it, you have to be wary of over-paying. The inequality of bargaining positions, and the absence of perfect information about what the other side’s price is to reach agreement, creates opportunities for either side to significantly miscalculate.

A key driver is whether either party is willing to walk away from the deal. In the transactional context, there are some who live by the edict of never doing a deal that you are not prepared to walk away from. It can be fatal if the other side detects, from your negotiating behavior, that you must do the deal. But in the litigation context, sometimes you don't have the luxury of walking away. You must strike a settlement. The trick is striking the best deal possible under the circumstances.  Political negotiations share dynamics of both transactional and litigation negotiations. 

If one side must do the deal and the other side doesn't need to, then the metrics for measuring the deal's success will be 1) did the side who had to do the deal pay less than the other side’s original, undisclosed price, and conversely, 2) did the side who didn't have to do the deal pay more than the other’s side’s original, undisclosed price)?      

For purposes of the budget dynamics, I'll frame the this issue in terms of “Obama versus Boehner” as each side’s negotiators, even though that obviously wasn’t literally the case. 

So who had to do a deal? I say Obama for these reasons:

*         His campaign-defined identity demanded it. Obama ran for office as an antidote to the perceived imperial presidency of Bush/Cheney. His broad theme of changing this dynamic in Washington, which had its roots in his 2004 DNC speech, required that he find a way to bring a polarizing debate to resolution. It's one of the reasons he won independents handily and many disaffected, moderate Republicans in 2008. He lost these voters in the 2010 midterms. Fairly or not, many rational, smart voters around the country believe Obama was far more partisan than they expected in his first two years. Liberals can blame this on the GOP's constant filibustering and obstructionism during that time, but that won't change the 2010 election results. Indeed, you don't even have to look at issues like Healthcare Reform, the Dodd-Frank Act and the energy bill, Obama’s 2011 budget is Exhibit A. That bill was passed by the House, but was successfully filibustered by Republican Senators. Despite the Republican obstructionism, the GOP ran on cutting spending in 2010 and won in a landslide.  By the time this new Congress revisited the 2011 budget, the issue was not whether the budget would be cut, but by how much it would be. So while the political environment shifted for Obama, he remained obligated to bridge the partisan divide and find a solution.

*         The dynamic of short CRs with cuts had to stop.  Boehner was quite happy with the status quo of repeatedly enacting continuing resolutions for short periods in return for spending cuts. He could do it indefinitely. Although short term CRs hurt business by creating uncertainty, to Boehner, that cost is outweighed by the disruption to the Obama agenda.

*         Voters needed to see the ideology behind the GOP cuts more starkly. CRs rolling out in the form of relatively harmless cuts of $1B-2B at a time are not enough to win back independents and awaken the Democratic base. CRs allowed the GOP to get what it wanted without paying any serious political cost. The only way for that dynamic to shift was for voters to see the GOP's broader ideological plans in plain sight.  Boehner’s proposals to defund EPA clean water regulation and Planned Parenthood did exactly that. Indeed, the dynamic didn't really begin to shift Obama's way until the focus shifted from CRs to the broader plans in Ryan’s 2012 budget to cut these programs.  Senate Republicans and even some GOP House members began to publicly back away from the House Republican policy riders. In other words, Boehner was finally forced to pay the political price of his policies that he didn't have to under the CR scenario.

*         Democrats expected Obama to compromise. Pundits focused on polling showing that, in stark contrast to Republicans' view of Boehner, most Democrats expected Obama to compromise on the budget. They cited this polling to argue that Boehner was at a disadvantage, hemmed in by the Tea Party segment of his base. But what this view missed is that the Democrats’ base had a correspondingly restrictive effect on Obama's ability to walk away. Short of the GOP demanding devastating cuts on cherished programs, most Democrats would not have accepted Obama walking away and letting the government shut down.

By contrast, Boehner could have walked away:

*         As noted, the status quo was working for Boehner. 

*         Boehner’s Tea Party base wanted him to walk away.  Boehner actually would have been cheered as a hero by the Tea Party elements of his base.  It would have been entirely consistent with their campaign promise of blocking Obama’s agenda.

With the dynamic established among the two negotiators, who came out ahead?  I say Obama.

·               The deal breaches Boehner’s pledges to midterm voters. The reason why pundits on the right are angry at Boehner is because he breached the GOP’s midterm campaign Pledge.  Boehner promised to return spending to 2008 levels pre-TARP and Stimulus, which they said would amount to at least $100 billion in spending savings in the first year alone (2010).  They also promised to add hard caps on discretionary spending, and put an immediate stop to any unspent Stimulus spending (presumably excluding the healthy one-third of that law’s total cost that was composed of tax cuts).  That’s not imaginary cuts from Obama’s proposed 2011 budget that was filibustered – it’s $100B cut in actual spending from 2010.  None of these things happened in last night’s budget deal.  Not even close.  I think Boehner saw this coming, which is why they tried adding the policy riders – to make the much more modest reductions more palatable to the base.  But Boehner blinked on the policy riders, too.  So the deal, by falling so short of his Pledge, comes at a high political price – obviously much higher than his original price disclosed in the Pledge.  And remember, he was free to walk away.

·               Many Beltway pundits give Boehner a pass for breaking his Pledge because they never took it seriously in the first place.  I get that the seen-it-all-before veteran Beltway pundits viewed Boehner’s Pledge cynically, but you can’t have your cynicism distort your evaluation of the facts.  Doing so only allows Boehner to escape accountability for his own promise to voters, and tilts the scales in his favor.  Boehner set his own bar high. The passionate Tea Party conservatives and libertarians that shouted at town halls and rallied at state capitols took the Pledge seriously, and voted with an expectation that Boehner would, too.

·               Some Beltway pundits ignore the Pledge and instead measure the $38.5B cut against what Obama proposed in his budget for 2011, which then magically becomes a cut of $78B, which then appears much closer to $100B.  But that’s moving the goal posts for Boehner.  The Pledge didn’t use Obama’s 2011 budget as the baseline for its savings of at least $100B in 2011.  Obama’s budget never passed in the last Congress, and the Pledge promised “saving us at least $100 billion in the first year [2011] alone.” Pledge at 21. That suggests real savings of $100B against 2010’s actual spending, not theoretical reductions against a prior year’s proposed-but-never-passed budget. I say “suggests” because the Pledge never says it any more clearly – any interpretation that the Pledge’s language meant at least $100B in cuts from Obama’s 2011 budget requires a leap.

·               Obama deflected harmful cuts.  Boehner blinked on the red meat cuts (with the exception to the restrictions on abortion funding in DC’s budget, although these restrictions are consistent with the Hyde Amendment and not new).  Some liberal pundits have argued that Boehner’s proposal to defund Planned Parenthood was probably just a bargaining chip to obtain more cuts, which Boehner ultimately got.  Yes, the funding at issue for Planned Parenthood was apparently in the neighborhood of $335M, and the deal terms did seem to go up a billion or two in the end after this policy rider was dropped.  But who gave up more here?  The policy rider was designed to make Boehner’s base happy. There were protestors staging sit-ins in the Capitol yesterday demanding the Planned Parenthood policy rider remain in the bill. The anti-choice component of the GOP base is a hugely important part of its coalition, and they viewed it as far more important than the $335M price tag.  Defeating this policy rider was far more important to Obama than the amount as well.  The total budget is in the neighborhood of $3.8 Trillion.  In a budget that size, finding a billion or two more to cut to protect Planned Parenthood is an easy call for Obama, and Boehner is the one who sold out for cheap.  The extra billion or two tossed in (that is, if it was tossed in) was a face-saving gesture.

So now we move on to the next round.  Obama, as he spoke from the Blue Room last night, spoke in calm, reasonable and bipartisan tones.  He was the adult, speaking last, and even speaking favorably of the deal and Boehner.  In the next round, if Boehner sticks with Ryan’s 2012 budget, then we will see a far greater escalation of the partisan fight of what we just witnessed last night over Planned Parenthood.  The GOP's effort failed yesterday, and I can’t see how plans to destroy coveted social programs will go any better.  But by reaching a deal last night, and agreeing to “significant” cuts as framed by his team (although, again, not compared to a $3.8T budget and not seriously affecting cherished programs), Obama is actually in a better position to walk away in the next round.  He has gained more flexibility.  And if the GOP stubbornly overreaches, it can be framed as their second attempt at inserting partisan ideology into budget negotiations.  Boehner’s team already poisoned that well, and have little to show for it.

[Editorially cleaned up on 4/15]

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UDPATE 4/15:  More facts about how the deal unfolded and what it actually contained dribbled out since I posted this last Saturday. The new facts add more support to this conclusion that the President pwned Boehner (he says modestly).  

First, while some Beltway pundits like Chuck Todd speculated that the Planned Parenthood was just a ruse to extract concessions from the Democrats, the new facts undermined this theory. One was a NY Times report that there was an 11th hour confrontation between Boehner and President Obama in the Oval Office late on Friday night over the issue of Planned Parenthood defunding. Boehner tried repeatedly to argue his case, but was met with a firm "No" each time by the President.  I don't see how you can infer from those dramatic circumstances that it was just a ruse.  Nor was there any great treasure to show for Boehner's alleged ploy.  Over the course of the week, we learned that budget deal was mainly composed of accounting gimmicks rather than serious cuts to coveted programs.  Later, the Congressional Budget Office scored the Budget Deal as cutting $335M in actual spending from 2010 levels (an amount the federal government probably just spent while you were reading this post), and if emergency spending is included, it actually INCREASES spending by $3.3B.  These late revelations caused defections in the House Republican caucus, which in turn caused Boehner to breach another promise: to pass the Budget Deal without a single Democratic vote.  Ultimately, only 179 House Republicans voted for the Budget Deal, far short of the promised 218. 

So the President gave up nothing and got credit for keeping the government open for business, while Boehner damaged his party by alienating independent voters and moderate Republicans with his overreach on Planned Parenthood and betraying the most passionate segment of his base -- the Tea Party voters.  This was his first big test, and he failed.  Suddenly those political gaffes by Boehner during the House Republicans' first week in office look like a pretty accurate sneak preview of his competency as Speaker.

David Sirota is leading a charge to relitigate his opposition to health care reform.  To wage this campaign, he's exploiting the departure of an obscure staffer from the Senate Finance Committee to U.S. Department of Health and Human Services as PROOF AT LAST of conspiratorial corruption by the Obama administration, Congress and private health insurers in crafting health care reform.  

The person he's attacking is Liz Fowler. Since 2008, she has been Chief Health Counsel for the Senate Finance Committee and Senior Counsel to its chairman, Senator Max Baucus.  BREAKING:  HCR passed!  Not a lot of health care legislation in the pipeline at the office right now for old Liz.  Probably a good time to look for something else to do, if you were her. 

In fact, if she were so inclined, it would be the IDEAL TIME to cash in by going to K Street and become a lobbyist.  With her expertise, she could easily negotiate a base salary north of $500K, before bonus.  Or she could join a DC law firm with health care clients and get a similarly hefty package.  Or she could join an HMO, a hospital or health care-related trade association for a similar package.  She is enormously valuable to a marketplace that needs to understand a large and complex law and its implementing regulations.  She will never have as much leverage as she has right now.

But apparently she's not so inclined.

Liz chose to stay in government by joining HHS in a deputy director position.  It's probably in the lower-to-mid tier of the Senior Executive Service, so I'd guess she's making around $150K.  Good money, but less than one third of what she could have easily landed in the private sector.  In fact, it's less than the $160K base salary of first-year associates at most good DC law firms, before bonus.  And by the way, by joining the executive branch, she is now subject to restrictions on lobbying that more severely limit her exit options than when she was a Senate staffer.  Way to cash in, Liz.  How bloody corrupt of you.

Her great crime is she previously spent two years at Wellpoint, the largest private health insurer, as VP of Public Policy from 2006-2008.  I've found no evidence that she served as a registered federal lobbyist while there.  What evil deeds did she do while at Wellpoint?  I've been unable to find anything. Sirota hasn't either, apparently.  Maybe that's because George Bush was president at the time, so it was a little awkward for Wellpoint to undermine the Bush administration's health care reform efforts because, well, you know, THERE WEREN'T ANY.

As far as I have been able to tell, she has spent most of her career in public service.  She spent her early years in at Hogan & Hartson, worked for Senator Pat Moynihan, Rep. Pete Stark and Senator Max Baucus, and then later rejoined Baucus and the Senate Finance Committee in 2008.  Her numerous degrees (B.A. from Penn, Ph.D. in public health from Hopkins, and law degree from Minnesota) presumably triggered a significant amount of student loan debt.  So she had the motive and opportunity to cash in, and probably nobody would have said boo if she had left the Senate to go to K Street.  But because she chose to stay in public service, that's evidence of corruption?

Sorry, but there's a reason that it is well settled law that your fiduciary obligations to your prior employer terminate with your employment.  The law doesn't favor restraints on trade.  You have absolutely no duty of loyalty whatsoever to your prior employer (other than perhaps to maintain trade secrets, but that's a separate technical issue).  To suggest that she has some lingering, perpetual obligation to Wellpoint (which at this point is two jobs ago) is pure fantasy in the absence of concrete evidence.

And Sirota also thinks the story is an indictment of the Washington media for its failure to make her job move a national scandal. That's right, our media is corrupt because it fails to draw wild conclusions based on speculation!  I'd agree that there are many forms of Washington media corruption: pay-for-access salons, reporters captured by those they cover, allowing cowardly blind quotes from government officials without good reason, participation in leak manipulation, and SEO-driven sensationalist headlines, but not its failure to breathlessly cover a Senate staffer's move to the bowels of the vast federal bureaucracy.

More troubling, most people these days work for more than one employer over the course of their career.  Perhaps the trend was pushed by Curt Flood ushering in the era of free agency in sports, but employers and employees alike don't expect a lifetime commitment anymore.  So the notion that our professional identity is permanently tied to a former employer is absurd and entirely unfair.  Should someone who was a middle manager in HR at Arthur Andersen or Enron be forever tarnished by that job?  No. Should a well known liberal civil libertarian blogger who used to be an associate at a notorious Wall Street corporate law firm be forever defined by that job?  Yes. I mean NO!

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Update: 7/19/10

Since my post, Sam Stein has done solid reporting to debunk this story.  First, Stein reports that Fowler was never a lobbyist for Wellpoint.  In addition, several advocates of health care reform who know and worked with Liz Fowler sing her praises, including staffers of SEIU, Public Campaign Action Fund, and Hill Democrats. Perhaps most persuasive, however, Rep. Pete Stark (D-CA) strongly sings Fowler's praises.  Stark has been an advocate for single payer health care for decades.  If we're going to attribute the views of Fowler's past employers to her (which I wouldn't recommend), we can't cherry-pick -- you'd have to argue that she must be to the left of the Obama administration as a zealous advocate of a fully government-administered single payer health care system, like her former boss Stark.

The anger over Liz Fowler is really about blaming her for the actions of Senator Max Baucus and the Senate Finance Committee he chaired, and for which she worked.  I certainly agree that Baucus' "Gang of Six" working group of three Senate Democrats and three Senate Republicans was not only a waste of time, the delay was very harmful to both the legislation and the administration's early momentum.  Ultimately, the bill voted out of that committee was substantially re-worked in any event -- first by Senator Harry Reid combining several important elements of the bill voted out of the late Senator Kennedy's HELP committee, and then later by the House amendments that passed separately (and thereby avoiding conference at a time the Democrats lacked 60 votes).  Had Baucus moved more rapidly, perhaps the final bill could have been enacted before Senator Kennedy passed away, which not only would have been a fitting tribute for his life's work he could have enjoyed, but might also have led to a more progressive bill. And if HCR had passed sooner, perhaps the tea party movement would have remained on the silly fringe, and the administration would not have had its broader agenda hijacked by frumpy, balding members of Congress bickering over process.  So believe me, I get the frustration with Baucus.  But blaming his counsel is wrong.  The creation of the Gang of Six and its absurd duration were decisions above her pay grade.

Another thing that drove this faux outrage was the Bill Moyer's video that Sirota included in his original post.  Moyer's outrage wasn't just that Fowler left Baucus' staff to join Wellpoint, but that when she rejoined the Senate Finance Committee, another staffer left and joined Wellpoint.  Moyer's view was that this chain of events had to be evidence of something sleazy by Wellpoint, and the complicity of the broader system.  But ironically, it was Fowler who broke the chain by NOT cashing in on her Senate experience when it was time for her to leave.  Moyer's video pre-dated Fowler's decision to leave the Senate for the executive branch.

One last thing, it occurred to me that I really didn't fully explain this post's headline.  The facts of Liz Fowler and her new job aren't really the point of this faux outrage -- I could debunk it all day and it wouldn't make a difference to those who were so willing to accept its premise blindly.  It is really about the relitigation of health care reform by opponents from the "left" like David Sirota.  Actually, I don't think he deserves the label "left" (he famously once compared Obama voters to the KKK on Twitter, before apologizing and deleting his tweet only after the highly regarded scholar of the Jim Crow era, Professor Blair Kelley, pointed out to him via Twitter what an egregiously ahistorical analogy that was -- it was a comparison I find difficult to spring naturally from the heart and mind of someone truly of the left), but he spends most of his time on left-leaning blogs, I'll stick with it by default.  Sirota and his allies have been using the same tactics of GOP campaigns against Obama generally, and against the health care reform initiative in particular, from the beginning.  The patented Lee Atwater/Karl Rove technique is to toss out a charge that has a kernel of truth but is grossly exaggerated to push a harmful, politically motivated attack.  It attracts attention because the charge conjures up feelings of anger, fear or betrayal.  The kernel of truth gives the media license to give the story oxygen.  By the time it is debunked, often days later, the damage is done, because the media has already moved on to the next thing.  The falsehoods live on as tenaciously as weeds in an urban vacant lot.  From the right, the cries were were designed to work with their base: Death panels! Federal abortion coverage! Rationing!  From Sirota and Jane Hamsher, the cries fed a contrived narrative that Obama was betraying his campaign promises and selling out his base. Rahm is killing the public option! Obama really doesn't want HCR to pass!  Yes, it is true that Fowler once worked at Wellpoint, and was an important Senate staffer in drafting the legislation -- there's your kernel. It's spun to suggest that she has never stopped doing the bidding of Wellpoint and was hired with this proclivity in mind by an Obama administration hell bent on selling out true reform. Behold - a hit job!  

Jon Stewart is a great comedian. Like most comedians, his humor works when it strikes a cord that rings true, even if he uses an absurd way to get there. And his main job is to make us laugh, not to report facts accurately.  I’ve been recording his show for years and think he’s great.

So I’m really reluctant to write this post about Stewart’s 8-minute rant on Obama last night -- I'm far to young to engage in a "Get Off My Lawn" rant.  And it was clear that in the end, his rant was really about setting up a sight gag to suggest Obama was Frodo, and Sarah Palin was Gollum, and the ring was presidential authority.  But I’ve seen several posts and tweets taking it seriously, gleefully gloating about it. If it is going take hold as truthful, then I guess I can’t resist taking the bait.

Stewart's big theme is that Obama has betrayed us out of a thirst for power. The straw man is Obama premised his entire campaign on reining in presidential power, but as president, has instead pursued executive power as aggressively as, if not more so than, his predecessor George Bush on the following issues: 

Gitmo. Obama signed an executive order to close Gitmo, but the relocation of the prisoners requires funding from Congress, and Congress has blocked his efforts.  Is it fair to say this blocking by Congress, including by members of his own party, constitutes an Obama power-motivated betrayal?  I don’t see it.

 Habeas Corpus. Stewart showed a clip of The Nation’s Chris Hayes stating that while detainees who are U.S. citizens in Gitmo (a U.S. military base) are entitled to habeas corpus to seek a court appeal of their detention, the DC Circuit Court decided that non-U.S. citizen detainees held at Bagram Airfield in Afghanistan are not entitled to habeas corpus, even if they were captured at foreign locations other than Afghanistan and brought to Bagram. This was not an Obama administration decision (although it is the position the administration argued for in court). The court made a distinction between what process is due a U.S. citizen detainee at a US facility outside the theater of war, versus a foreign detainee in the theater of war. Stewart then tried to illustrate (with props!) that Obama played a shell game with detainees by transferring them from Gitmo, where they have rights, to Bagram, where they don’t. Stewart makes this up – there’s been no such shell game involving Gitmo transfers to Bagram to end-run habeas corpus. Obama supported the Supreme Court decision, Hamdi v. Rumsfeld, that established Gitmo detainees who are U.S. citizens have habeas corpus rights (unlike John McCain, who Stewart fawns over as a frequent guest). 

Renditions. Every modern president, including the last Democratic president, Bill Clinton, has used this authority. The context of Obama’s opposition was the Bush practice of using it to transfer prisoners to countries where torture could be performed at notorious "black sites." One of Obama’s first acts as president was to ban torture and overturn the DOJ/OLC memos that under Bush that had authorized it. So Obama has eliminated the torture that drove his opposition to the Bush administration’s most egregious rendition practice.  The fact that he is still using renditions as a tool to combat terrorism, according to Human Rights Watch, is really no big deal.

 State Secrets. Obama was opposed of excessive use of the state secret privilege to block lawsuits against the government on the theory that they conflicted with national security. The Bush administration invoked the privilege 39 times, after it had only been invoked 6 times during the height of the Cold War, which certainly suggests it was being abused. AG Holder announced in September 2009 a new policy to limit the use of the privilege. Again, Obama never said he would eliminate it (or permanently waive the right to invoke it), he said he would stop its excessive, abusive use. 

 Miranda Rights. Stewart characterizes this as Obama "saying no to Miranda rights!" AG Holder said that the Department of Justice was considering recommendations to legislatively "modernize" Miranda rights, which is a court doctrine established in the 1960s largely in the context of police arrests of criminal suspects. Holder’s concern was that it was not designed for the exigencies of modern terrorism. This is the same AG Holder who has pushed for a criminal trial of the most notorious terrorists in civilian courts, despite significant GOP and local government opposition, instead of military commissions. He’s not calling for the end of Miranda rights.  In any event, immediately after Holder's statement on Meet the Press, the administration began to walk it back and there's been no push to take such action since. 

 Whistle Blowers. Stewart's evidence that Obama is "anti-whistle blower" is the horrible hit job by the New York Times, the sole point of which seemed to be "Obama is worse than Bush!"   Stewart declared "Obama arrests whistle blowers who expose government waste!" Um, no. Since I wrote about this already, I’ll move on.

Secret Wars. The sexy name comes from a recent Washington Post article about the Obama administration's use of special forces around the world largely in secret to unilaterally combat terrorism, train local forces, and engage in joint counter-terror operations with host countries.  According to the article, the operations are often secret in deference to the host country that doesn't want to publicly acknowledge permitting U.S. forces in the country.  As for legal controversy, the article suggests that the United Nations has expressed some concern, but not significantly in cases where the host country has more explicitly consented.  It seems the harshest criticism in the article was from former Bush officials still smarting over criticism over their administration's practices. Sour grapes.

 Killing American-Born Terrorists Abroad. His example is the American-born member of Al Qaeda based in Yemen who helped plan the failed Christmas bomber's attempt to bring down a passenger plane in Detroit, who the CIA has apparently authorized to be killed by a drone. An argument could be made that if American born terrorists were subject to special protection relative to other terrorists abroad, this could be exploited by terrorists who would then actively recruit American citizens.  But a big issue here (as in any capital case) is what if the CIA makes a mistake?  So in the end, I come out against the Obama administration here.  But the issue here is not nearly as black and white under international law as, for example, the well established prohibition of torture. 

 So overall, do we have a massive betrayal by Obama now that he wears the ring?  Not so much.

Last night, shortly after the news broke that Senator Lincoln (D-AR) defeated her primary opponent, Lt. Gov. Bill Halter (D-AR), Ben Smith of Politico tweeted that "senior White House official" had called him to say, "Organized labor just flushed $10 million down the toilet on a pointless exercise. If even half that total had been well-targeted and applied in key House races across this country, that could have made a real difference in November." We don't know if this is exactly what he said, because it was a blind quote for which nobody is accountable. (I don't know why the media continues to grant anonymity for stabby quotes like this from senior government officials. It's just self-serving venting, not top secret information about the Watergate break-in.)

Twitter progressives erupted after Ben Smith tweeted his story. Even tweeps like @owillis and @pourmecoffee, who rarely look for excuses to attack the Obama White House, were furious with the quote. If they're angry with the White House comment, it's pretty clear a line was crossed. It made me wince when I read it, too.

The White House statement was really about a power clash that it won. If Halter had won, I'm sure one of Halter's netroots or organized labor backers would have made a similarly boastful comment about how Lincoln's defeat proved the White House's support of her was money flushed down the toilet in a pointless exercise.  They probably would have added some unfavorable comparisons to the White House's waste of resources supporting Arlen Specter in Pennsylvania.  You could call that "White House bashing" just as Keith Olbermann and others called the anonymous White House comment "union bashing", but it's really not.  It's not an ideological critique of the need for unions, in the way that Reagan attacked them.  It's an expression of "I told you, dumbass" to the unions and netroots folks who had disagreed with the White House campaign strategy. The unions and netroots defied the White House in a costly gambit, it failed, and the political ops folks at the White House wanted to send a message.  Remember, the White House official called Ben Smith, not vice versa. 

This dispute is the continuation of an old, internecine battle over which candidates to support and how to allocate funds.  It traces back to arguments between some in the netroots and the Howard Dean-led DNC versus the Representative Emanuel-led DCCC circa 2005-2008. Ah yes, Ned Lamont.  Like a lot of blood feuds, many of the facts are in dispute and subject to revisionism.  It's very meta and getting counter-productive for both sides as mid-terms approach.   

But this sidebar is a distraction from shedding light on a completely separate, fundamental vulnerability in Halter's campaign that was present before it even started. Folks in Arkansas are already a little touchy about outsiders, with their nasty habit of mocking the state as an inferior backwater. The notion that some folks from the coasts could hatch a plot to unseat a homegrown incumbent out of pique, and expect Arkansas voters to play along, was pretty presumptuous, and carried the risk of being flipped around to the advantage by the incumbent. Late last year, Jane Hamsher went on The Rachel Maddow Show and proudly boasted that if Lincoln wouldn't support a public option, then Hamsher would find a primary challenger for Lincoln. She said it as if she could just snap her fingers and a candidate would immediately jump in the primary race.  Effectively, Hamsher had just made the not yet identified primary challenger as her bitch. Lincoln saw what was coming. She went on the Senate floor and spoke directly about "outside threats" against her. She wasn't speaking of the threats in a state of panic -- she was deliberately laying the groundwork for framing her primary opponent. It was later reported that Hamsher and other netroots activists, and organized labor leaders, met with Bill Halter to encourage him to run against Lincoln with their support. When he later declared his candidacy, FDL and allies trumpeted the news with the pride of parents of a newborn. That made it easy for Lincoln's campaign to later frame Halter as an astroturf puppet. The fact that Bill Clinton sided with Lincoln over Halter supported Lincoln's frame that she was the true homegrown candidate. The outside netroots folks and organized labor should have seen the problem with their conspicuous role.  It was probably the difference for Lincoln in a close race.

My criticism here should not be confused with affection for Lincoln. She's not my ideal of a senator, but then again, I don't live in Arkansas. I don't think there's a massive difference between Lincoln and Halter, and whatever it is, it is nothing compared to the difference between either of them and the GOP Senate nominee, John Boozman. I don't like seeing progressives work against the Obama White House agenda or other Democratic candidates to serve a proxy war with Rahm Emanuel, nor seeing a counter-offensive from the White House to keep constituencies in line. It's a "pointless exercise" that, if it causes Democratically inclined voters to grow disaffected and stay at home, will not advance the progressive agenda.