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Chilling legal memo from Obama DOJ justifies killing of U.S. citizens

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Guest hitoallusa
Posted

I don't think Obama administration will kill a child simply because a child is associated with a terrorist group. I trust their judgment in exercising its power reasonably and if not get him impeached. I can understand the view point of this journalist but it seems he interprets this issue a bit as a constitutional priest. Maybe that's not a fair statement but I do believe that Obama will exercise his power within one's conscience and reason. Of course I think there should be a check point in case he abuses his power in killing people associated with a terrorist group. I believe that issue should be addressed but I don't worry too much.

Posted

hitoall, you know my regard for you. But one must ask:

IT IS ILLEGAL.

IT IS UNCONSTITUTIONAL.

Why do you think we have laws and a constitution?

Please think. I know you can do it.

Guest hitoallusa
Posted

Being legal doesn't always mean its ethical or PRATICAL.. You seem to be not a big of people who argue strongly for religious tenets. Yet I can't understand that you don't see this in the same light.

  • Members
Posted

I'm always a stickler about Constitutional Rights and I was against much/most of the Patriot Act pushed by Bush and renewed by Obama. I still am. However, there are circumstances where rights may not be absolute. Taking up arms against the country might be one exception under the right circumstances.

I'm going out on a limb here commenting without having read either of the above links YET. I will get to it when, 1. I have the time, and 2. I have the presence of mind to recall them, intersect.

I believe our Drone Policy is in serious need of clarification and discussion but not about whether Constitutional Rights of citizens are absolute or the need to kill a U.S. citizen is ever justifiable. They are not and it is in potential circumstances, IMO.

What is in dire need of discussion are the red lines in making such decisions and taking such actions. Here are my thoughts:

If one take up arms, figuratively or literally, against the U.S. then he is an enemy of the the United States and a traitor.

If he is in the jurisdiction of U.S. Constitutional Rights, eg. the Homeland or Territory or foreign base, then those rights and procedures extend to him.

If he is in the jurisdiction of a country at war against the U.S. and he provides aid and comfort to those fighting that war then he is a traitor and military combatant and forfeits those rights he fights to overturn. He should be offered the opportunity to surrender himself for prosecution under those rights. If he declines to do so then he forfeits those rights as a traitorous U.S. Citizen and is treated as a military combatant without Constitutional Rights, the same as any other combatant of the foreign country.

If he is in a sovereign country that is not in a declared war with the U.S. then he is classified as a combatant of a nongovernmental military organization at conflict with the U.S. Whatever the organization is called is unimportant, they are defined by their actions against the U.S., not by their name. The U.S. should seek a cooperative agreement with the Sovereign government to apprehend or permit the U.S. to apprehend the combatant.

Failure to achieve either of those outcomes leaves Drones as one legitimate option to deactivate the combatant. Another series of red lines relating to target value and cost of execution must then be addressed. That relates to intelligence information available on the target and target location. I have to assume that we have placed that analysis and decision making in competent hands, else we have no confidence in any of our intelligence and military structures.

Some raise the issue of having the positions of judge, jury and executioner reside in one office/person. It is a fair concern. Unfortunately, these circumstances do not lend themselves to a separation of functions as our civil and military law procedures do. Personally, I would have no problem if an entity like the FISA Court was set up to validate the case for a citizen to be added to a Citizen Combatant Military Action List. It would not afford the combatant with an advocate, a right he already declined by refusing to surrender. However, it would provide an external set of eyes and minds to review the facts and arguments against an individual before placing him on the Citizen Combatant Military Action List.

I have stepped over the whole sticky business of analysis and decision making associated with ordering a time and place for definite action. I'm unqualified to do more than admit existence of these thorny issues. However, I did want to address the issue that seems to bother many liberals about 'targeting a citizen'.

Chris Matthews provided an example that crystalized in one image all of my feeling about the legitimacy of such action under the right circumstances when he said "imagine seeing an American citizen in a Nazi uniform in WWII Germany or Vichy France". Clearly these people knowingly forfeit their Constitution Rights by their own actions. Anyone who does not see that chooses not to see the nose on their own face.

  • Members
Posted

How is killing US citizens who are judged by politicians or their appointees to be terrorists different from executing criminals, other than one is legal and the other clearly not?

Best regards,

RA1

  • Members
Posted

How is killing US citizens who are judged by politicians or their appointees to be terrorists different from executing criminals, other than one is legal and the other clearly not?

Best regards,

RA1

It is not a politician or political appointee that makes that decision. It is the Commander-In-Chief or his designees in the Millitary or Intelligence commands who makes that decision. So says the Constitution. Politicians speak for their party, the CIC speaks and acts for the nation. The Nation elected him to do so. You or I may not agree with everything he does (I had my differences with some Bush decisions) but that doesn't diminish his authority to do so.

I don't believe that such authority is absolute in all circumstances or even most circumstances but rather authorized by circumstance. For example, if we have a terrorist in custody and he no longer poses an active threat to our government, and we are signatories to international agreements and have civilian and military law that sets precedent for actions and remedies in our country and military then I do not believe that CIC is authorized on his own authority to revoke or ignore those laws/agreements.

The difference between a criminal and a terrorist is that the latter strikes against the very being of our nation with the intent of killing it. The criminal has much more modest goals to commit crime to enrich himself or harm individuals or entities for their own reasons. They are not a threat to the country.

The President is not required or authorizied by by the Constitution to undertake local law enforcement activities. Congress has extended by statute Federal Law enforcement authority in narrowly-drawn well-defined situations that usually involve interstate criminal activities and certain heinous crimes like kidnapping.

  • Members
Posted

I was emphasizing the "killing" of various US citizens rather than the "rights" of a pol aka CIC. Personally I am in favor of the execution of certain criminals and also of terrorists but I am more than willing to let the law of the land prevail until and unless it is "legally" changed.

Over the years the US has seen various accepted doctrines change, sometimes for the better and sometimes not so much better. We are not through with this process and, with any luck, we never shall be.

I was not particularly a fan of many of the latest Bush's activities while president but BO has continued or increased some of those activities many viewed as oppressive or illegal. Time will tell.

Best regards,

RA1

Posted

TY, I agree the Framers gave each branch pretty broad latitude to do as it saw right, in whatever the exigencies. Certainly it is useful that the Executive can stretch his/her powers quite far when times demand. Then, emergency past, Congress and the courts can beat back the excesses. (Took Hamilton to see, some 20 years after ratification, that those perceived weaknesses/incompletenesses of the Constitution were in fact some of its greatest strengths.)

BUT. Do you really not think some of Obama's application of those principles goes too far? Due process, once we get used to its being lost, may be frightful hard to recover.

  • Members
Posted

In my opinion, the simplest question to the gobbling up of civil rights in the name of the 'war on terror' would be:

Is there any liberty granted to any U. S. citizen that should not be taken away immediately if someone in the Federal government decides it interferes in any conceivable way with the 'war on terror' as defined at that moment by the someone doing the defining?

So far, the answer to that question seems to be a resounding "No!". As far as I can tell, no one in government has stood in the way of this assault on individual freedom as it erodes before our eyes.


I think the continuation of this process will lead, in very short order, to the elimination of guaranteed civil rights for every one of us. Could Osama Bin Laden or Ayman al-Zawahiri have imagined, in their wildest dreams, that the destruction of the Bill of Rights, the Constitution, and the rule of law could all have occurred within a single generation?

article-2004202-00BD5F2C1000044C-251_634

  • Members
Posted

I certainly could not imagine it but it is happening. :(

Best regards,

RA1

Posted

Lookin, your phrase "will lead" is so optimistic. "Has led," try? And where is anyone of conscience in the civil debate? Has the left, the right, and everybody in between taken leave of their senses?

Posted

Evidently. There does seem to be some hope that Brennan's pending confirmation hearing will provide occasion for at least a modicum of public debate over all this.

Posted

Update on Congress's -- so far feebly -- mounting will to use the Brennan nomination to pry open the Administration's secret legal memos.

Obama officials refuse to say if assassination power extends to US soil

The administration's extreme secrecy is beginning to lead Senators to impede John Brennan's nomination to lead the CIA

Glenn Greenwald
guardian.co.uk

Friday 22 February 2013 09.46 EST

The Justice Department "white paper" purporting to authorize

Obama's power to extrajudicially execute US citizens was leaked three
weeks ago. Since then, the administration - including the president
himself and his nominee to lead the CIA, John Brennan
- has been repeatedly asked whether this authority extends to US soil,
i.e., whether the president has the right to execute US citizens on US
soil without charges. In each instance, they have refused to answer.

Brennan has been asked the question several times as part of his confirmation
process. Each time, he simply pretends that the question has not been
asked, opting instead to address a completely different issue. Here's
the latest example from the written exchange he had with Senators
after his testimony before the Senate Intelligence Committee; after
referencing the DOJ "white paper", the Committee raised the question
with Brennan in the most straightforward way possible:


brennan1.png

Obviously, that the US has not and does not intend to engage in such
acts is entirely non-responsive to the question that was asked: whether
they believe they have the authority to do so. To the extent any answer
was provided, it came in Brennan's next answer. He was asked:

Could you describe the geographical limits on the Administration's conduct drone strikes?"

Brennan's answer was that, in essence, there are no geographic limits
to this power: "we do not view our authority to use military force
against al-Qa'ida and associated forces as being limited to 'hot'
battlefields like Afghanistan." He then quoted Attorney General Eric
Holder as saying: "neither Congress nor our federal courts has limited
the geographic scope of our ability to use force to the current conflict
in Afghanistan" (see Brennan's full answer here).

Revealingly, this same question was posed to Obama not by a journalist or a progressive but by a conservative activist, who asked if drone strikes could be used on US soil and "what will you
do to create a legal framework to make American citizens within the
United States believe know that drone strikes cannot be used against
American citizens?" Obama replied that there "has never been a drone
used on an American citizen on American soil" - which, obviously,
doesn't remotely answer the question of whether he believes he has the
legal power to do so. He added that "the rules outside of the United
States are going to be different than the rules inside the United
States", but these "rules" are simply political choices the
administration has made which can be changed at any time, not legal
constraints. The question - do you as president believe you have the
legal authority to execute US citizens on US soil on the grounds of
suspicions of Terrorism if you choose to do so?
- was one that Obama, like Brennan, simply did not answer.

As always, it's really worth pausing to remind ourselves of how truly
radical and just plainly unbelievable this all is. What's more
extraordinary: that the US Senate is repeatedly asking the Obama White
House whether the president has the power to secretly order US citizens
on US soil executed without charges or due process, or whether the
president and his administration refuse to answer? That this is
the "controversy" surrounding the confirmation of the CIA director -
and it's a very muted controversy at that - shows just how extreme the
degradation of US political culture is.

As a result of all of this, GOP Senator Rand Paul on Thursday sent a letter to Brennan vowing to filibuster his confirmation unless and until the White House answers this question. Noting the numerous times this question was previously posed to Brennan and Obama without getting an answer, Paul again wrote:

Do you believe that the President has the power to authorize lethal force,

such as a drone strike, against a US citizen on US soil, and without

trial?"


After adding that "I believe the only acceptable answer to this is no", Paul wrote: "Until you directly and
clearly answer, I plan to use every procedural option at my disposal to
delay your confirmation and bring added scrutiny to this issue."

Yesterday, in response to my asking specifically about Paul's letter, Democratic
Sen. Mark Udall of Colorado said that while he is not yet ready to
threaten a filibuster, he "shares those concerns". He added: "Congress
needs a better understanding of how the Executive Branch interprets the
limits of its authorities."

Indeed it does. In fact, it is repellent to think that any member of the Senate Intelligence Committee -
which claims to conduct oversight over the intelligence community -
would vote to confirm Obama's CIA director while both the president and
the nominee simply ignore their most basic question about what the
president believes his own powers to be when it comes to targeting US
citizens for assassination on US soil.

Udall also pointed to this New York Times article from yesterday
detailing the growing anger on the part of several Democratic senators,
including him, over the lack of transparency regarding the multiple
legal opinions that purport to authorize the president's assassination
power. Not only does the Obama administration refuse to make these legal
memoranda public - senators have been repeatedly demanding
for more than full year to see them - but they only two weeks ago
permitted members to look at two of those memos, but "were available to
be viewed only for a limited time and only by senators themselves, not
their lawyers and experts." Said Udall in response to my questions
yesterday: "Congress needs to fulfill its oversight function. This can't
happen when members only have a short time to review complicated legal
documents — as I did two weeks ago — and without any expert staff
assistance or access to delve more deeply into the details."

Critically, the documents that are being concealed by the Obama administration are
not operational plans or sensitive secrets. They are legal
documents that, like the leaked white paper, simply purport to set forth
the president's legal powers of execution and assassination. As
Democratic lawyers relentlessly pointed out when the Bush administration
also concealed legal memos authorizing presidential powers, keeping
such documents secret is literally tantamount to maintaining "secret
law". These are legal principles governing what the president can and
cannot do - purported law - and US citizens are being barred from
knowing what those legal claims are.

There is zero excuse for concealing these documents from the public (if there is any specific
operational information, it can simply be redacted), and enormous harm
that comes from doing so. As Dawn Johnsen, Obama's first choice to lead
the OLC, put it during the Bush years: use of "'secret law' threatens the effective
functioning of American democracy" and "the withholding from Congress
and the public of legal interpretations by the [OLC] upsets the system
of checks and balances between the executive and legislative branches of
government." No matter your views on drones and War on Terror assassinations, what possible justification is there for concealing the legal rationale that authorizes these policies and
defines the limits on the president's powers, if any?

You know who once claimed to understand the grave dangers from maintaining secret law? Barack Obama.
On 16 April 2009, it was reported that Obama would announce whether he
would declassify and release the Bush-era OLC memos that authorized
torture. On that date, I wrote: "today is the most significant test yet determining the sincerity of
Barack Obama's commitment to restore the Constitution, transparency and
the rule of law." When it was announced that Obama would release those
memos over the vehement objections of the CIA, I lavished him with praise
for that, writing that "the significance of Obama's decision to release
those memos - and the political courage it took - shouldn't be minimized". The same lofty reasoning Obama invoked to release those Bush torture memos clearly applies to his own assassination memos, yet his vaunted belief in transparency when it comes to "secret law" obviously applies only to George Bush and not himself.

The reason this matters so much has nothing to do with whether you
think Obama is preparing to start assassinating US citizens on US soil.
That's completely irrelevant to the question here. The reason this
matters so much is because whatever presidential powers Obama
establishes for himself become a permanent part of how the US government
functions, and endures not only for the rest of his presidency but for
subsequent ones as well.

What is vital to realize is that the DOJ "white paper"
absolutely does not answer the question of whether the assassination
power it justified extends to US soil. That memo addressed the question
of whether the president has the legal authority to target US citizens
for assassination where "capture is infeasible" and concluded that he
does, but that does not mean that it would be illegal to do so where capture is feasible. Contrary to the claims of some commentators, such as Steve Vladeck,


it is impossible to argue reasonably that the memo imposed a
requirement of "infeasibility of capture" on Obama's assassination
power.

This could not be clearer: the DOJ memo expressly said that
it was only addressing the issue of whether assassinations would be
legal under the circumstances it was asked about, but that it was not opining on whether it would be legal in the absence of those circumstances. Just read its clear language in this regard: "This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful."


Again: the memo is not imposing "minimum requirements" on the
president's assassination powers, such as the requirement that capture
be infeasible. For those who did not process the first time, the memo -
in its very last paragraph - emphasizes this again:


doj.png

That's as conclusive as it gets: the DOJ white paper does not - does
not - answer the question of whether the president's assassination power
extends to US soil. It does not impose the requirement that capture
first be infeasible before the president can target someone for
execution. It expressly says it is imposing no such requirements. To the
contrary, it leaves open the question of whether the president has this
power where capture is feasible - including on US soil. That's
precisely why these senators are demanding an answer to this question:
because it's not answered in this memo. And that's precisely why the
White House refuses to answer: because it does not want to foreclose
powers that it believes it possesses, even if it has no current "intent"
to exercise those powers.

The crux of this issue goes to the heart of almost every civil liberties assault under the War on Terror
since it began. Once you accept that the US is fighting a "war" against
The Terrorists, and that the "battlefield" in this "war" has no
geographical limitations, then you are necessarily vesting the president
with unlimited powers. You're making him the functional equivalent of a
monarch. That's because it is almost impossible to impose meaningful
limitations on a president's war powers on a "battlefield".

If you posit that the entire world is a "battlefield", then you're authorizing him to do anywhere in the world
what he can do on a battlefield: kill, imprison, eavesdrop, detain -
all without limits or oversight or accountability. That's why
"the-world-is-a-battlefield" theory was so radical and alarming (not to
mention controversial) when David Addington, John Yoo and friends
propagated it, and it's no less menacing now that it's become Democratic
Party dogma as well.

Once you accept the premises of that DOJ white paper, there is no cogent limiting legal principle that would
confine Obama's assassination powers to foreign soil. If "the whole
world is a battlefield", then that necessarily includes US soil. The
idea that assassinations will be used only where capture is "infeasible"
is a political choice, not a legal principle. If the president has the
power to kill anyone he claims is an "enemy combatant" in this "war",
including a US citizen, then there is no way to limit this power to
situations where capture is infeasible.

This was always the question I repeatedly asked of Bush supporters
who embraced this same War on Terror theory to justify all of his
claimed powers: how can any cognizable limits be placed on that power,
including as applied to US citizens on US soil (and indeed, the Bush
administration did apply that theory to those circumstances, as when it
arrested US citizen Jose Padilla in Chicago and then imprisoned him for
several years in a military brig in South Carolina: all without
charges). They did so on the same ground used by Obama now: the whole
world is a battlefield, so the president's power to detain people as
"enemy combatants" is not geographically confined nor limited to foreign
nationals.

Out of the good grace of his heart, or due to political expedience, Obama may decide to exercise this power only where he claims capture is infeasible, but there is no coherent legal reason
that this power would be confined that way. The "global war" paradigm
that has been normalized under two successive administrations all but
compels that, as a legal matter, this power extend everywhere and to
everyone. The only possible limitations are international law and the
"due process" clause of the Constitution - and, in my view, that clearly
bars presidential executions of US citizens no matter where they are as
well as foreign nationals on US soil. But otherwise, once you accept
the "global-battlefield" framework, then the scope of this presidential
assassination power is limitless (this is to say nothing of how vague
the standards in the DOJ "white paper" are when it comes to things like
"imminence" and "feasibility of capture", as the New Yorker's Amy
Davidson pointed out this week when suggesting that the DOJ white paper may authorize a president to
kill US journalists who are preparing to write about leaks of national
security secrets).

That this is even an issue - that this question even has to be asked and the president can so easily get away with refusing to answer - is a potent indicator of how quickly and easily
even the most tyrannical powers become normalized. About all of this,
Esquire's Charles Pierce yesterday put it perfectly:

"This is why the argument many liberals are making - that the drone program

is acceptable both morally and as a matter of practical politics because

of the faith you have in the guy who happens to be presiding over it at

the moment -- is criminally naive, intellectually empty, and as false

as blue money to the future. The powers we have allowed to leach away

from their constitutional points of origin into that office have created

in the presidency a foul strain of outlawry that (worse) is now seen as

the proper order of things.

"If that is the case, and I believe it is,
then the very nature of the presidency of the United States at its core has become the vehicle for permanently unlawful behavior. Every four years,

we elect a new criminal because that's become the precise job description
."

That language may sound extreme.


But it's actually mild when set next to the powers that the current
president not only claims but has used. The fact that he does it all in
secret - insists that even the "law" that authorizes him to do it cannot
be seen by the public - is precisely why Pierce is so right when he
says that "the very nature of the presidency of the United States at its
core has become the vehicle for permanently unlawful behavior". To
allow a political leader to claim those kinds of of powers, and to
exercise them in secret, guarantee chronic criminality.

Targeting US citizens v. foreign nationals

Whenever this issue is raised, people quite reasonably ask why there should be
any difference in the reaction to targeting US citizens as opposed to
foreign nationals. As a moral and ethical matter, and as a matter of
international law, there is no difference whatsoever. I am every bit as
opposed to targeting foreign nationals for due-process-free
assassinations as I am US citizens, which is why I have devoted so much
time and energy to opposing that policy. I also agree entirely with what
Desmond Tutu recently said in response to calls for a special secret "court" to be created to review the targeting of US citizens for assassinations:

"Do the United States and its people really want to tell those of us who

live in the rest of the world that our lives are not of the same value

as yours? That President Obama can sign off on a decision to kill us

with less worry about judicial scrutiny than if the target is an

American? Would your Supreme Court really want to tell humankind that

we, like the slave Dred Scott in the 19th century, are not as human as

you are? I cannot believe it.

"I used to say of apartheid that it dehumanized its perpetrators as much as, if not more than, its victims. Your response as a society to Osama bin Laden and his followers

threatens to undermine your moral standards and your humanity."

But the explanation for why the targeting of US citizens receives distinct
attention is two-fold: both political and legal. Politically, it is
simply easier to induce one's fellow citizens to care about an abusive
power if you can persuade them that it will affect them and not merely
those Foreign Others. It shouldn't be that way, but the reality of human
nature is that it is (recall how civil liberties and privacy concerns
catapulted to the top of the news when US citizens generally - not just
Muslims - were subjected to new invasive airport searches). So
emphasizing that the assassination power extends to US citizens as well
as foreign nationals can be an important instrument in battling
indifference.

But there's also a legal difference. As the Supreme Court has interpreted it, the US Constitution applies, roughly speaking, to two groups:


(1) US citizens no matter where they are in the world, and (2) foreign
nationals on US soil or US-controlled land (that's why foreign
Guantanamo detainees had to argue that the US had sovereignty over Guantanamo Bay in order to invoke the US Constitution's habeas corpus guarantee against the US government).
While international law certainly constraints what the US government may
do to foreign nationals outside of land over which the US exercises
sovereignty, the US Constitution, at least as the Supreme Court has
interpreted it, does not. Moreover - not just for the US but for every
nation - there is a unique danger that comes from a government acting
repressively against its own citizens: that's what shields those in
power from challenge and renders the citizenry pacified and afraid.

The US policy of killing or imprisoning anyone it wants, anywhere in the
world, is immoral and wrong in equal measure when applied to US citizens
and foreign nationals, on US soil or in Yemen and Pakistan. But
application of the power to US citizens on US soil does raise distinct
constitutional problems, creates the opportunity to mobilize the
citizenry against it, and poses specific political dangers. That's why
it is sometimes discussed separately.

Guest hitoallusa
Posted

"Could the Administration carry out drone strikes inside the United States?" Now the question itself is unfair not to mention wrongly worded..Maybe they could have asked the question differently. If you think the answer is yes or no then you wil face a long legal debate since the question itself is so broad that you can't contain its scope... The question itself is not properly asked and this writer sensationalizing it is a nonsense. Good thing is that the administration doesn't have any intention to do so and I think that's good enough for an answer... But I can't believe that Obama is not exacting the same standard he applied to Bush era torture memos... Why do you think he is afraid to come forward with his purported law? I think the public is entitle to know.. I hope Obama could explain himself..

The problem is Americans and congress will not react strongly unless something major happens to them. It's just human nature to do so.

  • Members
Posted

Or, vice versa?

Best regards,

RA1

Posted

Or, vice versa?

What, I also need to worry about them targeting my cup of sugar while I'm borrowing my neighbor? ^_^ (Sounds like what would have happened had a Hellfire found its way down into my late lamented club The Web.)

(Neither subject a laughing matter, of course.)

  • Members
Posted

The vice versa I had in mind was if your neighbor (aka the target) was borrowing a cup of sugar from you. ^_^

It doesn't much matter WHY or where you two are together if there is a missle with his or her name on it headed inbound. :(

Our version of the sanhedrin at work.

Best regards,

RA1

Guest rimchair
Posted

​Rand Paul! Rand Paul! I am sending him $$.


By Carrie Dann and Kasie Hunt, NBC News

Kentucky Republican Sen. Rand Paul pledged to filibuster the nomination of John Brennan to be the next CIA director "until I can no longer speak."

Well after the twelve-hour mark, with assists from more than a dozen colleagues along the way, he showed little sign of stopping.

Forcing the question of civil liberties and U.S. drone policy into the spotlight, what began as a one-man stand increasingly gained steam - and supporters - both in the Senate chamber and in social media throughout the day.

Paul's traditional or "talking" filibuster -- dependent on one senator's control of the floor rather than a tally of votes -- continued into the wee hours as the Kentucky lawmaker pressed his case against the administration's policy on drone strikes on American soil.!

Guest EXPAT
Posted

I wouldn't put much sincerity in anything Rand Paul does. I doubt he really cares about this issue because if Bush were in office he would not be doing this. This is much more about obstruction than anything else. Don't be fooled by this subtrafuge.

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