NY Times Reports White House, High Court Legal SNAFUs

By Andrew Kreig / Project Director

Barack ObamaThree major news reports by the New York Times since June 17 about dubious legal conduct at the White House and Supreme Court illustrate why the mainstream media remains irreplaceable in our democratic discourse. Reporters can break courageous, careful and vital work in the independent media on these topics but it's largely without impact unless and until the corporate-owned media make the news available to millions.

In this instance, the Times landed Mike Tyson-style attention-getters to the jaw of President Obama and, separately, to Supreme Court Associate Justice Clarence Thomas.To be more clear, we're not talking about the dainty version of SNAFU suitable for the parlor. Instead, this is in the spirit of the original military vernacular. Conditions could even be approaching FUBAR, scandal and worse. 

Specifically, the Times reported that Obama began hostile operations against Libya's government despite warnings from his political appointees at the Justice and Defense Departments that his plan violated the governing 1973 War Powers Act. Regarding Thomas, the paper reported that favors bestowed on the justice and his wife by a wealthy Georgia conservative activist raise new and serious questions about the ethics of justice whose fitness for the bench has been harshly disputed ever since the scandals surrounding his 52-48 Senate confirmation. The third Times report describes how the Obama White House, even after its outrageous prosecution of former National Security Agency (NSA) executive Thomas Drake that ended in a misdemeanor plea, is still pushing ahead on its unprecedented crackdown against officials who cooperate with news reporters.

Times reporter Charlie Savage published, 2 Top Lawyers Lost to Obama in Libya War Policy Debate, reporting that Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization. The story continued:

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20. But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Clarence ThomasSeparately, the paper's Mike McIntire next reported Clarence Thomas’s Friendship With Magnate Puts Focus on Ethics, describing how a "multimillion-dollar project to preserve a seafood cannery in Pin Point, Ga., highlights an unusual, and ethically sensitive, friendship between the Supreme Court justice, Clarence Thomas, right, and Harlan Crow, a Dallas real estate magnate and a major contributor to conservative causes." It continued:

Since the two men met, Mr. Crow has done many favors for the justice and his wife, Virginia. In several instances, reports of Mr. Crow’s largess has provoked controversy and questions, adding fuel to a debate about Supreme Court ethics. But Mr. Crow’s financing of the cannery museum, his largest and previously unreported act of generosity, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct. Although the Supreme Court is not bound by the code, justices have said they adhere to it. Justice Thomas, through a spokeswoman, declined to comment. Mr. Crow also would not comment.

Thomas, whose decisions the past two decades have brought vast benefits to his backers from the ultra-right, has been fortunate in their unstinting support, including their pressure on Democrats in 1991  to rush through his confirmation hearings without calling witnesses who could have buttressed the testimony of critic Anita Hill, a law professor and former Thomas subordinate alleging sexual harassment. Thomas was fortunate also that his leading critic in Congress, New York Democrat Anthony Weiner, was exposed in a sex scandal just as Thomas made new financial disclosure filings. The filings revealed what appear to be more financial improprieties regarding a Thomas family investment in a consultancy that could profit from his ruling in landmark campaign financing Supreme Court decision, Citizens United v. Federal Election Commission.  Weiner's scandal conveniently obscured news of that investment from public scrutiny, along with many other major news items. Early this year, we followed up initial reports by Common Cause that Thomas had been systemmatically making false statements on his judicial financial disclosure forms to obscure public advocacy work by his wife, Virginia Thomas. His recently released disclosure reports for 2010 suggest a scandal requiring a federal criminal investigation given his family's relationship with lobbying groups and his refusal to answer questions.

More specficially, critics affiliated with the activisit organization Velvet Revolution note that an ultra-right activist organization called Citizens United ran $100,000 worth of television commercials in 1991 attacking Senators who were threatening to vote against Thomas' confirmation. "Twenty years later," writes blogger Brad Friedman, "and without either Thomas disclosing it, or anyone in the media connecting the dots, Thomas decided in favor of the group in the now-infamous Citizens United v. FEC case, which has allowed a tsunami of corporate money into our political and electoral system." Friedman, who writes BradBlog and who is a Velvet Revolution co-founder, continues:

It was that decision that allowed corporations to pour virtually unlimited money into 501(c)(4) non-profits that could, in turn, use the money to affect elections with millions of dollars in campaign ads, etc. Ginni Thomas created one of those 501(c)(4) organizations just after oral arguments were argued before her husband in the Citizens United case, and somehow managed to raise some $550,000 in about two months' time before the end of 2009.

Another overlooked issue has been the Obama administration's escalation of the Bush war on whistleblowers who inform the public of waste in government spending. The White House is especially sensitive to those who expose military or homeland security contracting that is overseen by powerful private companies and their cronies in government.  Times reporter Scott Shane reported the Obama crackdown on whistleblowers in, U.S. Pressing Its Crackdown Against Leaks. The article described the prosecution of Stephen J. Kim, an arms expert charged with violating the Espionage Act for revealing classified information to a Fox News reporter.

Jay CarneyIn related news, the public interest investigative reporting group IWatch revealed that nearly 200 of Obama's biggest donors "have landed plum government jobs and advisory posts, won federal contracts worth millions of dollars for their business interests or attended numerous elite White House meetings and social events." In Obama donors net government jobs published by Politico, the IWatch team of Fred Shulte, John Aloysius Farrell and Jeremy Borden from the non-profit Center for Public Integrity contrasted Obama's performance with his campaign vow to banish “special interests” from his administration. Obama spokesman Jay Carney, left, responded by saying donors did not receive special treatment in winning jobs, advisory positions and contracts with the administration.  “We stand by all of our appointments,” Carney told reporters. “We believe they are enormously qualified for the jobs.”

To be continued, of course.

Contact the author Andrew Kreig or comment

Below are other significant recent, articles on legal reform and related political, security and media factors. The articles, including a strong representation from independent blogs and other media, contain a sample of news. See the full article by visiting the home page, and visiting News Reports.

June 19

Rob KallOpEd News, Obama's John Yoo Moment -- Cherry Picking Lawyers to Break a Major Law, Rob Kall, June 19, 2011. Bush and Cheney searched around until they found an attorney who would vet torture. Now we have the news that Obama did the same thing to start an illegal war in Libya. The thin veils are dropping away. The smoke is clearing. The chimera of democracy is eroding. There is a bi-partisan effort to challenge Obama. Too bad the Republicans aren't impeaching him for his violation of the war powers act. Lawyers can't just say it's okay and that makes it okay. I say impeach Obama. Force a primary or get him off the ballot altogether. My choice for the Democratic candidate -- Elizabeth Warren.

OpEd News, Supreme Scumball -- Clarence Thomas -- More Ethical Issues Emerge, Rob Kall, June 19, 2011. The NY Times reports another example of what has become a cascade of reports of Clarence Thomas' unethical behaviors. Real Estate Magnate Harlan Crow has done a lot of expensive kindnesses for Thomas. Crow gave Justice Thomas a $15,000 bust of Lincoln, gave Thomas wife Virginia $500,000 to help her start a Tea-party group that has opposed Obamas health care program and Crow  helped finance a Savannah library project dedicated to Thomas. And there's more.  It's time the media put pressure on whatever powers Obama in the White House, the majority Dems in the senate and Eric Holder in the DOJ can exert to investigate Thomas and his unethical pattern of operating.

June 18

Ralp NaderOpEd News, Waging Another Unconstitutional War, Ralph Nader, June 18, 2011. In 2007, then-Senator Barack Obama stated that "the president does not have any power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." You see, the widespread daily bombing of Libya, the strict naval blockade of Muammar Gadhafi-controlled Libya, the destruction of Gadhafi's family compound and tent encampment in the desert -- killing his son and three grandchildren -- and the deployment of special forces inside Libya is not a "War." It is, in the Obama White House's evasive nomenclature, just a "time-limited, scope-limited military action" Can you find that phrase in the Constitution? 

Desperately seeking legitimacy, Mr. Obama cites the UN resolution, NATO, and the Arab League instead of seeking it from Congress. [But] all treaties with foreign countries, including the UN Charter, are trumped by the US Constitution (Reid v. Covert, 354 U.S. 1 (1957)). As a former teacher of constitutional law, the president knows this basic principle but then, as Lord Acton declared: "Power corrupts and absolute power corrupts absolutely."

Salon / Unclaimed Territory, Obama rejects top lawyers' legal views on Libya, Glenn Greenwald, June 18, 2011. The growing controversy over President Obama's illegal waging of war in Libya got much bigger last night with Charlie Savage's New York Times scoop.

FireDogLake, Obama Ignored Advice of Top Legal Advisors, OLC in Waging War in Libya, David Dayen, June 18, 2011. During the Bush Administration, mid-level functionaries would be found to write legal justifications for waging war, committing acts of torture, or what have you. Now, during the Obama Administration, the top lawyers are free to give their considered opinion on these issues. But the President will simply overrule them.

June 17

Washington Post, Libya and the Potemkin Alliance, George Will, June 17, 2011. After America’s intervention in Libya’s civil war, the most protracted and least surreptitious assassination attempt in history, was supposed to last “days, not weeks,” but is in its fourth month and has revealed NATO to be an increasingly fictitious military organization. Although this war has no discernible connection with U.S. national security, it serves the national interest, in three ways. It is awakening some legislators to their responsibilities. It is refuting the pretense that the United Nations sets meaningful parameters to wars it authorizes — or endorses, which is quite different. And it is igniting a reassessment of NATO, a Potemkin alliance whose primary use these days is perverse: It provides a patina of multilateralism to U.S. military interventions on which Europe is essentially a free rider.

June 15

War is a Crime, Congress Members Sue Obama to End Libya War, David Swanson, June 15, 2011. On Wednesday in federal court, 10 members of the U.S. Congress sued President Obama in an attempt to end U.S. involvement in a war in Libya. These are the plaintiffs: Dennis Kucinich (D-OH), Walter Jones (R-NC), Howard Coble (R-NC), John Duncan (R-TN), Roscoe Bartlett (R-MD), John Conyers (D-MI), Ron Paul (R-TX), Michael Capuano (D-MA), Tim Johnson (R-IL), and Dan Burton (R-IN).  According to a statement from Congressman Kucinich, "The lawsuit calls for injunctive and declaratory relief to protect the plaintiffs and the country….”

Salon / Unclaimed Territory, Rep. Brad Sherman on the illegality of the Libyan War, Glenn Greenwald, June 15, 2011.  When I wrote earlier this week of a potential left/right coalition emerging against the National Security State, a commenter replied -- a bit snidely but mostly accurately -- that I've "been predicting a 'bipartisan coalition emerging . . . for five or more years now."  Most significantly, on Tuesday night, an amendment sponsored by the Democratic hawk and AIPAC loyalist Rep. Brad Sherman of California -- to cut off funds for the war in Libya unless and until the President complies with the War Powers Resolution -- passed the House by a substantial majority, with roughly equal support from both parties, though with the leadership of both parties (Pelosi, Boehner, Hoyer, Cantor) in opposition.

FireDogLake, Prison Privatization as Political Payback, Lee A. Saunders, June 15, 2011. Across the country, politicians have been selling off public assets to private businesses in exchange for hefty campaign contributions and sweetheart deals. The politicians claim they are saving tax dollars, but when the real costs are examined, it’s only the corporations – who back them financially at election time – who are making a financial killing on the deals. This kind of corrupt pay-back to wealthy corporate-CEOs has produced numerous disasters for taxpayers, who end up paying more in the long run. Nowhere has this “pay and play” scandal been more outrageous than in the recurring efforts of some governors to privatize their state prisons.  They sell the prisons to private contractors – including the GEO Group, Corrections Corporation of America, and the Management & Training Corporation – who then cut corners on safety, health and services. Some contractors refuse to take the most hardened criminals or those who are in need of medical and psychological services. Even without those prisoners, they run up costs to increase their profits.

June 14

Jackson Clarion-Ledger, Minor sentencing: Reduction is apt, Editorial board, June 14, 2011.  U.S. District Court Judge Henry T. Wingate reduced the fHenry Wingateederal bribery conviction of ex-attorney Paul Minor on Monday to eight years from 11. A federal appeals court had vacated the bribery convictions of former Gulf Coast attorney Minor and former Harrison County judges Wes Teel and John Whitfield but upheld the guilty verdicts on corruption charges. Wingate denied requests by Minor, Teel and Whitfield to be re-sentenced to time served. But he reduced their sentences, with Teel to four years and Whitfield about six, all less than previous. The crux of the argument for Minor and the others is that while they may have violated federal laws, they may have been operating legally under state laws. The confusion comes about since Mississippi law is so lax: Giving cash and loans to judges - as "campaign contributions" - is legal. The 11-year sentence given to Minor by Wingate originally was especially harsh. The reduction in light of the vacated charges was merited, but the sentences remain tough.

Legal SPaul Minorchnauzer, Judge In Paul Minor Case Continues His Evil Ways, Roger Shuler, June 14, 2011. The biggest problems with our justice system involve people, not process. For the most part, the actual law makes sense, at least to me. Our system has become a sewer because of the people--lawyers; judges; even clerks, in some cases--who are supposed to apply the law, but instead act in a corrupt fashion. That's not to say, however, that the system itself doesn't have some perverse qualities. And two of them are on display this week in the Paul Minor case in Mississippi.

Cato / On Liberty, FBI’s New Guidelines Further Loosen Constraints on Monitoring, Julian Sanchez, June 14, 2011. The New York Times‘s Charlie Savage reports that the FBI is preparing to release a new Domestic Investigations and Operations Guide (DIOG), further relaxing the rules governing the Bureau’s investigation of Americans who are not suspected of any wrongdoing. This comes just three years after the last major revision of FBI manual, which empowered agents to employ a broad range of investigative techniques in exploratory “assessments” of citizens or domestic groups, even in the absence of allegations or evidence of wrongdoing, which are needed to open an “investigation.” The FBI assured Congress that it would conduct intensive training, and test agents to ensure that they understood the limits of the new authority—but the Inspector General found irregularities suggestive of widespread cheating on those tests.

Oliver DiazSun Herald (Biloxi-Gulfport, MS), Oliver Diaz’s story featured in HBO documentary, Anita Lee, June 14, 2011. Oliver Diaz Jr., right, remembers the moment he realized judicial races had changed for good in Mississippi. He was watching morning television, probably as he dressed for a day of campaigning in his state Supreme Court race. The announcer said, “Oliver Diaz is taking thousands of dollars from Mississippi trial lawyers,” as bags filled with money landed on a judge’s bench. The U.S. Chamber of Commerce sponsored the ad, he noted at the time. The 2000 campaign, and Diaz’s subsequent legal ordeal, are featured in a documentary that will air June 27 on HBO. The documentary, called “Hot Coffee,” attempts to show how corporate America distorted the image of justice in a concerted campaign to limit jury awards against businesses, and to limit individual access to the courts.  Diaz’s experience illustrates the money and energy corporate America has spent to elect sympathetic judges. Novelist John Grisham also is interviewed for “Hot Coffee.” The native Mississippian based his best-selling novel, “The Appeal,” on Diaz’s 2000 Supreme Court race. It tells the story of an incumbent Supreme Court candidate beaten by a newcomer whom a businessman backed, in order to prevail in a pollution case.

June 8

BradBlog, 'Judicial Insider Trading' by Justice Clarence Thomas & Wife Ginni? Brad Friedman, June 8, 2011. 'Judicial Insider Trading' by Justice Clarence Thomas & Wife Ginni? When the Financial Disclosure Form for 2010 of Clarence Thomas was released last Friday one government watchdog organization described what Thomas and his wife Virginia "Ginni" Thomas may be been doing as "Judicial Insider Trading." Connecting the dots, it would seem the couple made huge profits from Thomas' participation and insider knowledge of last year's Citizens United ruling at the U.S. Supreme Court. One very important point that hasn't received nearly enough attention: during Thomas' contentious confirmation hearings in 1991, he received a huge boost when an outside organization ran $100,000 worth of television commercials attacking those Senators who were threatening to vote against Thomas' confirmation. That organization? A newly formed group called Citizens United. Twenty years later, and without either Thomas disclosing it, or anyone in the media connecting the dots, Thomas decided in favor of the group in the now-infamous Citizens United v. FEC case, which has allowed a tsunami of corporate money into our political and electoral system. It was that decision that allowed corporations to pour virtually unlimited money into 501(c)(4) non-profits that could, in turn, use the money to affect elections with millions of dollars in campaign ads, etc.
Ginni Thomas created one of those 501(c)(4) organizations just after oral arguments were argued before her husband in the Citizens United case, and somehow managed to raise some $550,000 in about two months' time before the end of 2009.