The Unseen Cost Of A Litigious Society

This story has been sitting on my toolbar since Thursday. I didn’t want to write it because I don’t fully understand it and it is very complex, but it needs to be written.

Paul Mirengoff at Power Line posted an article on Thursday entitled, “Power and Constraint — how the JAGs hijacked U.S. anti-terrorism policy.” The article deals with how our actions in fighting the war on terror have been hijacked by lawyers rather than being run by the military.

The article reports:

During the Bush years, we often heard from the left that the war on terror was changing America for the worse by undermining our values and our Constitution. These claims were mostly nonsense. But one portion of our system did take a hit — the concepts of civilian control of the military and the Commander-in-Chief as chief law interpreter for the executive branch. This was the handiwork of the JAGs.

We covered this development as best we could on Power Line, mostly by reporting on the work, and the preening, of Lindsey Graham, the JAGs men in Congress. However, until I read Jack Goldsmith’s book Power and Constraint, I didn’t know the half of it.

Mr. Mirengoff then excerpts a large portion of his review of the Book Power and Constraint to explain how the JAGs have influenced the way the war is being fought. I strongly recommend that you follow the above link to the Power Line article and read the entire article.

The article at Power Line concludes:

Goldsmith appears troubled by the military’s undermining of the President’s ability to interpret the law on behalf of the executive branch. He also recognizes that the injection of lawyers into battle harmed U.S. counterterrorism efforts. Ultimately, he is agnostic as to whether the harm is outweighed by the possible prevention of misguided polices and the blowback they would have caused.

Goldsmith’s agnosticism is understandable. Both sides of the cost-benefit equation are impossible to measure. But this much should be clear: our elected executive is responsible for making the cost-benefit decisions. His decisions may be subject to judicial review, but they should not be undermined or thwarted by military lawyers. It also seems clear that in war, including war on terrorism, the president should err in favor of defeating the enemy, rather than minimizing “blowback.”

As a relative of a soldier who served two tours in Afghanistan, I object to the current rules of engagement. I think it’s time we either fought wars or left situations alone. There really is no successful in-between path.

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Overruling The Law When Convenient

Sequestration is scheduled to occur on January 2, 2013. As usual, note that this is after the November election. Sequestration is essentially drastic cuts to government spending triggered by the fact that Congress was unable to reach a budget compromise. Sequestration will have an incredibly negative aspect on the American economy overall if is actually happens, and as of now, it will happen.

Scott Johnson at Power Line posted an article today about some of the political maneuvering revolving around sequestration. The article explains that under the Worker Adjustment and Retraining Notification (WARN) Act, defense contractors are required to issue notices of layoffs to employees 60 days before the layoffs occur. Since under sequestration defense contractors can expect major layoffs (January 2, 2013), those notices would go out in early November. Obviously, the Obama Administration does not want that to happen.

The Office of Management and Budget (OMB) has issued a memorandum stating that they do not believe these notices should be issued. Please follow this link to read the entire memorandum.

Some highlights from the memorandum:

DOL (Department of Labor) concluded that it is neither necessary nor appropriate for Federal contractors to provide WARN Act notice to employees 60 days in advance of the potential sequestration because of uncertainty about whether sequestration will occur and, if it did, what effect it would have on particular contracts, among other factors:

Specifically, if (1) sequestration occurs and an agency terminates or modifies a contract that necessitates that the contractor order a plant closing or mass layoff ofa type subject to WARN Act requirements, and (2) that contractor has followed a course of action consistent with DOL guidance; then any resulting employee· compensation costs for WARN Act liability as detennined by a court, as well as attoroeys’ fees and other litigation costs (irrespective of li tigation outcome), would qualify as allowable costs and be covered by the contracting agency, if otherwise reasonable and allocable.

Translated into English, this says don’t send out the notices and the government will pay any legal penalties.

The Hill reports:

“The Obama Administration is cynically trying to skirt the WARN Act to keep the American people in the dark about this looming national security and fiscal crisis,” Sens. John McCain (R-Ariz.), Lindsey Graham (R-S.C.) and Kelly Ayotte (R-N.H.) said in a statement. “The president should insist that companies act in accordance with the clearly stated law and move forward with the layoff notices.”

No one actually knows if sequestration will happen, but right now it is scheduled to happen. The law needs to be followed, regardless of the politics involved. The government is not supposed to be used as a campaign committee. This is totally over the top.

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A Case Of Misplaced Priorities

The Obama Administration has become more concerned with its image in America’s liberal media that it is with doing its job.

The Hill reported today that the New York Times and the Wall Street Journal got more complete briefings from Hillary Clinton on the attack that killed U.S. envoy Christopher Stephens in Libya than Senate Republicans received.

The article reports:

“I was very disappointed in the briefing yesterday, too. The bottom line is, we asked questions like, ‘How many people were at the Benghazi consulate?’ You pick up The New York Times and you get a blow-by-blow description of what supposedly went on,” said Sen. Lindsey Graham (R-S.C.), a member of the Senate Armed Services Committee.

The Times published a timeline of the attacks chronicling militants gaining access to the U.S. compound after 9:35 pm on Sept. 11, American security forces attempting to retake it at 10:45 pm and American and Libyan forces regaining control of the main compound around 11:20 pm, before evacuating.

The article further states:

“We were told nothing. We were told absolutely nothing,” said Sen. John McCain (R-Ariz.), ranking Republican on the Armed Services Panel.

McCain said the details lawmakers sought were in The Times and The Journal.

“If that isn’t an incredible disrespect to the members of the United States Senate, I don’t know what is,” he said. “It’s an example of the disdain with which this body is held by the administration, including, I’m sorry to say, the secretary of state.”

“She didn’t talk about anything,” McCain said of Clinton in a subsequent interview.

Senators asked Clinton about the sequence of events during the Benghazi attack. She and other officials declined to provide any specifics, citing an ongoing investigation.

If Washington is broken, part of the reason may be the fact that in an important national security matter, the Obama Administration chose to brief the friendly media rather than Congress.

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