Judge Andrew Napolitano

Watergate, 21st-century style

By Judge Andrew Napolitano - Thursday, May 8, 2014

When the White House, in response to a Freedom of Information Act (FOIA) request filed by the fearless private watchdog group Judicial Watch, turned over an email about constructing the appropriate narrative response to the tragedy at Benghazi written by Ben Rhodes, a deputy national security adviser to President Obama, and investigators from the House of Representatives realized that they had subpoenaed that email and not received it, they knew that there was far more to learn about the affair than met the eye.

The affair consisted of an organized fatal assault on the American consulate in that Libyan city that resulted in the deaths of the American ambassador and three State Department contractors assigned to protect him. It also includes a White House-orchestrated cover-up involving profoundly misleading statements after the attack, followed by an only-in-Washington cover-up of the cover-up.

The attack on the consulate occurred on Sept. 11, 2012, the 11th anniversary of 9/11, just as the American presidential election campaign between Obama and Gov. Mitt Romney was getting under way. Two weeks prior to the attack, Obama had assured his political supporters for the hundredth time that al-Qaida was on the run, its leadership had been subdued, and that he was the cause of that.

The last thing his campaign managers wanted to confront in the middle of September was an al-Qaida-orchestrated attack on American property in the Middle East in which our ambassador was murdered.

Yet, that’s what confronted the Obama campaign managers. So, they concocted a narrative that they could comfortably live with and that they believed the American public would accept.

Susan Rice, then the U.S. ambassador to the United Nations, relayed the narrative. Rice either permitted herself to become a political tool or materially lied to the American public when she told five Sunday morning talk shows on Sept. 16, 2012, that the attacks in Benghazi were not acts of terror and were not aimed at the ambassador, but rather were the spontaneous and unplanned reaction of a street crowd to a cheap anti-Muslim Internet clip that some jerk in California had made earlier that summer.

For a while, this seemed successful. The president was able to continue misleading the electorate with his claim that al-Qaida was on the run, Secretary of State Hillary Clinton was able to distance herself from the failure of her State Department to protect its own employees, and Romney and the Republicans would not discover the truth, or at least would not develop a narrative sufficient to contradict the White House narrative, until after the election.

It worked.

Now, with the discovery of the Rhodes email, it appears that the White House did use the instruments of government to aid the president’s re-election campaign by deceiving the American people and telegraphing that proposed deception to the president’s campaign officials. Using government personnel and assets to coordinate a political campaign, even if done truthfully and above board, violates federal criminal statutes.

As if that were not bad enough, it now appears that the State Department had special operations forces in close proximity to Benghazi, and the White House ordered them to stand down rather than confront the attackers, meet force with force and endeavor to save the lives of the ambassador and others, though at the risk of contradicting the president’s political boast.

When the truth — that the Benghazi attack was an al-Qaida-organized assault complete with military hardware and sophisticated planning — became known, and when the apparent deception by the president, the White House and the State Department was discovered, Republicans were furious.

Then the cover-up of the cover-up began, as the House Committee on Oversight and Government Reform learned when it tried to determine who told the U.S. forces to stand down, who dispatched Rice to tell lies, who certified that the Rhodes email did not exist and who then eventually released it. The committee wanted to know whether Rice was duped or was part of a plot to use the instruments of government to lie and deceive and enhance Obama’s chances of defeating Romney.

So, the Oversight Committee issued subpoenas and held hearings and concluded — a conclusion with which even the Democrats now agree — that the Benghazi attack was part of an organized terrorist assault, and the consulate was undefended.

Then Judicial Watch revealed the reply to its FOIA request of the White House, which included the Rhodes email, and a political firestorm broke loose. Speaker John Boehner addressed that firestorm by asking the House to form a Select Committee — one whose sole goal is to get to the bottom of this — and to grant it a serious budget and a full legal and investigative staff, and to set it loose upon the administration’s deceivers.

Already, the administration has declared that many of the documents the Select Committee will seek have been classified as top secret, and the president is free to classify any document he wants for any reason he chooses. Legally, that argument is correct. Frustrated congressional Republicans have no one to blame but themselves here, as they gave that legal power to President George W. Bush.

Nevertheless, can the Select Committee subpoena the president and his records to find out where he was during the eight-hour attack, who gave the order to stand down and permit murder rather than suffer political embarrassment, and who concocted the Rice deceptions? Yes. And he will claim executive privilege, and a federal judge will make the call.

And so, here comes Watergate, 21st-century style — except this time around, innocent people died. This time around, will it have the same outcome?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.” To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit www.creators.com.


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0 Responses to “Watergate, 21st-century style”

  1. StevenWaechter says:

    Perhaps the real reason is this:

    The founding fathers wrote a constitution for us, at the time it was necessary to travel long distances to the new world on wooden ships. It was a terrible hardship, so there were serious reasons why the persons who arrived in that way came here to truly be Americans.

    They didn't envision the shrinking of the world, how "global" our world has become. So they did what they found necessary in the 1700s.

    They wrote a constitution that was clearly intended to apply to Americans. It was never envisioned by them that the constitution they created should apply to any other people, so they didn't take that into consideration at all.

    So here we are today, with a constitution that applies to Americans, and now large swaths of our constitution apply to persons who find themselves temporarily or even illegally in the US. Illegal aliens, There were none in the 1700s.

    There have recently been attempts to give constitutional protections to country-less combatants in foreign lands, like Iraq and Afghanistan. To try them for their crimes in a US court of law, giving these non-Americans court appointed defense attorneys. And the same civil rights Americans enjoy, but they are neither Americans nor are the in America.

    Why Is it in our best interest to apply the constitution of the United States to non-Americans? When you think of it this way and the history, it seems laughable to try to even think we should apply our constitution and it's protections to those in foreign lands who have no ties whatsoever to the US. What are we supposed to do, provide free defense attorneys to any Frenchman who might be accused of a crime committed in France? Send our military in to invade France if they violate a Frenchman's constitutional rights? Ridiculous.

    So back to the question at hand. If President Obama is using drones to kill combatants who are not on US soil, those combatants are not eligible for the protections in our constitution. They rightly should not be. I think if they are indeed combatants, we should give no consideration to their origin.

    If they happen to be Americans by birth, though clearly not by demeanor or ideology and they are fighting on behalf of a foreign group, not necessarily even a country, we just don't need to know whom they are. If they don't want to be treated like foreign combatants they have an easy solution, just go home to the US.

    So arguing constitutional law as regards acts taken against combatants on foreign soil, well, that's what I call a bogus argument.

    This does not address whether President Obama should be allowed to use these methods on US soil, and clearly if we are talking about US soil the facts might be quite different. I have not heard that he is trying to use these extra judicial killing methods on US soil, and I don't know if he is/has/will.

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