Torture Lawyers Are Shocked, Shocked at Obama Recess Appointments

[Lemur]

This sort of belongs in News of the Weird, but in the end I figured it was too political. Anyway:

President Barack Obama has finally done something that makes even the Bush administration attorneys who helped craft the legal rationales for torture, warrantless wiretapping, and indefinite detention tremble with fear: Last week, he made recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau. [...]

David Addington, the former legal counsel to then-Vice President Dick Cheney who helped construct the legal justifications for Bush-era torture policies, argued the president had the "inherent" authority to ignore federal law when spying on American citizens, and put forth the novel view that the vice president's office is not a part of the executive branch and therefore not subject to congressional oversight, told the New York Times that Obama's recess appointments were "flabbergasting and, to be honest, a little chilling."

John Yoo, the former attorney with the Bush-era Office of Legal Counsel who suggested the president could order a child's testicles crushed, massacre a village of civilians or unilaterally suspend free speech in the event of a terrorist attack, also fears for the future of the republic if the president is able to bypass Senate procedural gimmicks meant to block recess appointments. At National Review, Yoo attacks Obama for his "abuse" of executive power in appointing Richard Cordray to head the CFPB.

There's a genuine legal argument over whether or not Obama has the authority to make recess appointments when the Senate is in pro forma sessions, even those explicitly designed to foil such appointments. As the New York Times' Charlie Savage has written, the appointments raise a number of questions: Whether the Senate is technically in session when it is incapable of conducting business, and what should happen when the Senate's constitutional authority to make its own rules clashes with the president's constitutional responsibility to keep the federal government running properly. At the very least, Democrats may come to regret setting this precedent when Republicans regain control of the White House, which could be very soon.

But John Yoo and David Addington are not good people to make these arguments. Watching two men who argued for years that the president could pick and choose which laws to follow wring their hands over Obama's recess appointments as an abuse of power is so absurd that one practically has to reach into fiction to find parallel analogies. If we could only get Lex Luthor's feelings on financial regulation or Emperor Palpatine's thoughts on the importance of checks and balances.

The Lemur's take: The senate should be able to stymie the executive branch, but they should pay a price for doing so. They want to filibuster? Fine, do it. Speak for eight hours at a time and days on end. Don't "indicate" that you'd like to filibuster and move on. That's for wimps.

Likewise, they want to prevent the executive from making recess appointments? Fine, but that means they have to stay in session, with a quorum of Senators not going on vacation. It's absurd that they can have virtual pretend sessions and declare that they're still in business.

If they want to block the business of governing the country, that's their right, but they can't do it the lazy way.

-edit-

And it's worth noting that this sort of dedicated obstructionism was what led another Senate to pave the way for dictatorship. Not saying that will happen here, just noting that when you actively demonstrate that an elected body can't get the job done, people become receptive to other methods of governance. Grover Norquist and his Optimate minions have a whiff of Cato about them.

[Lemur]

Are you telling me that it doesn't matter whether you vote Democrat or Republican, they're all a bunch of crooks!?

I don't see where I was saying that at all. My point is that if the Senate wants to stop the government in its tracks, they should do it for real, Roman senate style. None of this lift your little finger and indicate you're thinking about a filibuster.

Are there still people that trust the government? If so, why?

I trust my local school system. I trust my local police. I trust the IRS to do a good-faith effort to read my returns correctly (even if they do mess up now and then). I trust that the majority of people go into government because they want to serve, just like soldiers. (Unlike soldiers, however, I also trust that most politicans and political hangers-on get corrupted over time.)

Anyway. My point was not in any way some sort of all-guvmint-is-evul Libertarian rant.

[Vuk]

I trust my local school system. I trust my local police. I trust the IRS to do a good-faith effort to read my returns correctly (even if they do mess up now and then). I trust that the majority of people go into government because they want to serve, just like soldiers. (Unlike soldiers, however, I also trust that most politicans and political hangers-on get corrupted over time.)

For a man of your age Lemmy, you demonstrate a remarkable Naivety.

[Lemur]

I thought that was the point. That both a Republican and a Democratic president have taken all the steps they possibly can to increase their consolidated power.

Hmm, not quite, not exactly. Bush II—or to be more precise, the people around him—was very keen on expanding executive power. The legal rulings of David Addington and John Yoo are justifiably notorious. There's no way to put a good spin on a White House lawyer declaring that the President of the United States has a constitutional right to crush a child's testicles. So yes, Bush II definitely pushed the boundaries of executive power.

Obama seems more reactive to this Lemur. Faced with a Senate minority that is more than willing to suspend the normal functioning of government to stymie him, he is being boxed into taking questionable steps just to get things done. Big difference.

My hyperbolic warning about Cato and Caesar is over-the-top, but I do think this level of obstructionism from Congress is dangerous. Lots of right-wingers fantasize that if the government is shown to be incapable of managing its own business, then their model of limited-government states-rights reductionism will take hold. And the problem is that once you demonstrate that the government can't work, you do not know which way the people will jump. It's a very dangerous game the GOP minority in the Senate is playing. Moreover, by twisting the Senate rules and (at minimum) doubling the number of filibusters, the Republicans are laying the groundwork for an equal level of obstructionism in a future Republican administration. It's all terribly short-sighted.

For a man of your age Lemmy, you demonstrate a remarkable Naivety.

Who or where is this Naivety you speak of? I keed, I keed, I know you mean naiveté.

As a rule I give people the benefit of the doubt until they prove me wrong.

[Vuk]

Who or where is this Naivety you speak of? I keed, I keed, I know you mean naiveté.

As a rule I give people the benefit of the doubt until they prove me wrong.

A grammar Nazi too I see. :P
My 2 cents: People go into government for two major reasons: to push policies and world-views they hold, or to make a profit/gain position/power. The first can be right or wrong depending on the intentions of their policies and the sinisterness or lack thereof in their world-views, but the second is no good.
Most times it is a mix of the two.
I agree that one should give individuals the benefit of the doubt, but that does not mean that truthful statements cannot be said about the majority of the group.

[drone]

Nice to see Yoo and Addington haven't suffered any testicular atrophy in the past couple of years.

The Lemur's take: The senate should be able to stymie the executive branch, but they should pay a price for doing so. They want to filibuster? Fine, do it. Speak for eight hours at a time and days on end. Don't "indicate" that you'd like to filibuster and move on. That's for wimps.

I fully agree with this. Apart from the improvement to the political process, C-SPAN would be a lot more entertaining with the marathon filibuster.

[Ronin]

the us governmental machine sure has some crazy rules
a filibuster??...what the hell is the logic of that? you either have the votes or you don´t...majority wins...enforce a qualified majority rule for constitutional change and that's that .....is that so difficult??

[Papewaio]

I don't think they have moderators to lock out conversations that have wildly veered off topic.

If they aren't actually debating the topic at hand they should be found in contempt.

[Vladimir]

@OP

Oh please. Some of your ideas of torture are legally practiced against U.S. soldiers in training environments.

More shock and yawn. This is little more than a political gamble on the part of the President. That's why we have a court system.

[Lemur]

Some of your ideas of torture are legally practiced against U.S. soldiers in training environments.

You do know that SERE Level C training (which is the bit that includes waterboarding and stress positions) was explicitly designed to simulate North Korean torture, yes? I mean, you're not shooting wildly without knowing the subject, are you? You know your history, right?

SERE was created by the Air Force, at the end of the Korean War, to teach pilots and other personnel considered at high risk of being captured by enemy forces how to withstand and resist extreme forms of abuse. [...] The theory behind the sere program is that soldiers who are exposed to nightmarish treatment during training will be better equipped to deal with such terrors should they face them in the real world. Accordingly, the program is a storehouse of knowledge about coercive methods of interrogation.

So your argument, which I have heard before from over-opinionated, under-educated folks, is that since the US military has a specialist program to simulate torture, then whatever they're doing in there can't be torture. Even though the US has successfully prosecuted waterboarding as a war crime.

Seriously. This appears to be the position you're staking out. Reconsider, please.

[drone]

"He can't do that to our pledges. Only we can do that to our pledges."

[Xiahou]

That's why we have a court system.

And let's see what our newest SCOTUS member had to say about it in 2010....

Although a President may fill such vacancies through the use of his recess appointment
power, as the President did onMarch 27 of this year, the Senate may act to foreclose this
optionby decliningto recess formore than twoor three days at a time over a lengthy period.

Interesting, huh?