Last February, activists pitched a fit when it was announced that, for the second consecutive year, the gay Republican group GOProud would be a cosponsor of Washington's biggest right-wing confab, the Conservative Political Action Conference. The Heritage Foundation and Sen. Jim DeMint (R-S.C.) both skipped the event in protest. That came a year after Ryan Sorba, chairman of California Young Americans for Freedom, delivered an epic rant against GOProud at CPAC's main stage. In July, the American Conservative Union, which puts on the conference every year, bowed to complaints, and in July informed GOProud the group would not be invited back in 2012 (the only other group to receive a disinvite was the John Birch Society).

CPAC isn't so discerning about the rest of its cosponsors, though. As Right Wing Watch notes, one of the sponsors at February's conference will be Youth For Western Civilization, a group dedicated to, as the name suggests, preventing the "extinction" of Western Civilization at the hands of multiculturalism. Per its mission statement, the group boasts that, "in spite of the continual assault and hatred it endures from the radical left, we wish to revive the West, rather than see our civilization be sent to the graveyard of history."

Soldiers with 2nd Brigade Combat Team, 4th Infantry Division, walk in what could be mistaken for another planet. Once the Chinook helicopter dropped the Soldiers off at Forward Operating Base Pacemaker, it immediately flew away causing the loose dirt and dust to fly into the air. (US Army photo by Sgt. Ruth Pagan, 2nd BCT, 4th Inf. Div., PAO)

Presidential desk is presidential.

The Justice Department released its legal justification for Obama's appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau Wednesday, which states that the president has the authority to make appointments even when Congress is technically not in recess.

Republicans had sought to block Obama from making any recess appointments by using brief "pro-forma" sessions (in which no actual business is conducted) while legislators were away. It's a procedural maneuver used by legislators to prevent recess appointments by making it so that Congress is technically not in recess. Since the Constitution states that both houses must agree to adjourn, it was easy for the Republican-controlled House to prevent a "recess" even as lawmakers went home for the holidays. In particular, Republicans were seeking to make the administration's new consumer watchdog agency useless by leaving it without leadership. 

"When Congress creates an office, but doesn’t allow the president to fill it, that’s going to force the president to consider what other options he has," says Michael Gerhardt, a constitutional law professor at UNC Chapel Hill. 

The opinion from the Office of Legal Counsel, authored by Assistant Attorney General Virginia Seitz, argues that these "pro forma" sessions, which have historically been used by both parties to deny presidents the ability to make executive and judicial appointments, can't be used to block appointments unless the Senate is conducting actual business. The job of the OLC is to provide advice to the executive branch to ensure its actions comply with the law—although at moments under the Bush administration, OLC attorneys turned into virtual rubber-stamps for whatever actions the administration wanted to pursue.

Seitz writes that "while Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess." Seitz points out that legislators have frequently referred to times of prolonged absences as "recesses," even if Congress had not technically adjourned. (As Jonathan Bernstein noted, Tennessee Republican Rep. Diane Black said the president's appointments were unconstitutional because Congress was not in recess, before complaining that the nominees were put forth "a mere two days before the Senate recessed for the holiday.") Even the administration's supporters however, have generally acknowledged that the legal questions here are a close call, and Seitz acknowledges there are "substantial arguments on each side."

"[The opinion] is admirably forthright and candid about the closeness of the question and the arguments on the other side," says Marty Lederman, a former attorney with the Office of Legal Counsel who, as counsel to Senator Ted Kennedy, had argued that such appointments were not constitutional. "It doesn't hide anything."

The OLC's opinion should end speculation, put forth by conservatives like David Addington, former legal counsel to Vice President Dick Cheney, and even more progressive voices like Bruce Ackerman, that the president had not asked for advice from the Justice Department before making the appointments. The implication from some critics was that the administration knew the appointments were unconstitutional, and therefore didn't ask.

The opinion itself is dated January 6, two days after the appointments were announced—but that doesn't mean the opinion was sought retroactively. "It is common, especially where time is of the essence, to give legal advice prior to a formal written opinion," Lederman says. "It takes time to produce an opinion with this level of detail."

The opinion relies on previous memos written by Republican and Democratic officials, and it does marshal some strong historical evidence for its interpretation. The opinion quotes Alexander Hamilton writing that the recess clause of the Constitution is triggered when the Senate is not "in session for the appointment of officers," a sentiment echoed by a Senate Judiciary Committee letter from 1905 informing President Theodore Roosevelt about the limits of his authority to make recess appointments.

The bottom line is this: The Justice Department takes the view that when the Senate "is not available to give advice and consent to executive nominations," it is effectively in recess and the president can make appointments. Moreover, the opinion states that the Senate's constitutional authority to set its own rules cannot be used to keep the president from making appointments. Key here is that the opinion doesn't prevent the Senate from blocking appointments—it merely states that the Senate has to actually be in session in order to do so. 

The opinion would seem to extend to judicial appointments as well. Under the Justice Department's argument, Obama could have recess appointed every federal judge waiting for an up or down vote but chose not to. However, the power of judges comes in part from their ability to remain on the bench for life, which would be diminished by a time limited recess appointment. Obama's successors, however, may feel differently. 

"This is one opinion that is likely to be followed by future presidents," Gerhardt says. "It's not easy to overturn opinions of the [Office of Legal Counsel], as the history of the [Bush-era] Torture Memos demonstrate."

Pamela Geller, the anti-Muslim activist who was a significant force between the opposition to the so-called "Ground Zero Mosque" and guards America from inflitration by stealth jihadist turkeys, has posted a rather unusual reaction to the allegations the web video that appears to show US Marines urinating on the corpses of dead Afghans.  


Geller, mocking the Council on American Islamic Relations for its condemnation of the video, writes:

Would anyone have CAIRed if Marines urinated on dead Nazi soldiers during WWII? (Anyone besides CAIR and nazis, that is).

I love these Marines.Perhaps this is the infidel interpretation of the Islamic ritual of washing and preparing the body for burial.

The Pentagon had a different reaction. "We are deeply troubled by the video," Department of Defense spokesperson Capt. John Kirby said in a statement my colleague Adam Weinstein noted earlier today. "Whoever it is, and whatever the circumstances—which we know is under investigation—it is egregious behaviour and unacceptable for a member of the military."

UPDATE:  Holy Cross Religious Studies Professor Caner K. Dagli has posted what he says is an email exchange between him and Geller's frequent collaborator Robert Spencer, in which Spencer describes Geller as "engaging in satirical hyperbole, which she does with verve and bite."  He adds:

Leftist writers often engage in something analogous to this, although none of them are as intelligent, quick-witted or talented as she is, but when she does it, they suddenly become blunt literalists incapable of recognizing satire or irony, and schoolmarmishly insist that she assuage their hurt feelings.

Really worth reading the whole exchange, which is...fascinating. 

Former Speaker of the House Newt Gingrich.

As a service to our readers, every day we are delivering a classic moment from the political life of Newt Gingrich—until he either clinches the nomination or bows out.

Newt Gingrich led Republicans into power in 1994 on the promise of sweeping, transformational change—entire departments would be eliminated or consolidated, taxes would be slashed, the "corrupt welfare state" would be a thing of the past. That didn't quite work out. So as conservatives sought to keep their grip on Congress two years later, Gingrich instead sought to win the hearts and minds of voters through props.

Leading up to the 1996 election, Gingrich criss-crossed the country brandishing a white bucket, as a symbol of how Gingrich had cut bureaucratic waste by eliminating an anachronistic ice delivery service to congressional offices. Dating back to before the advent of refrigeration, ice had been delivered via white buckets to each office twice a day at no cost. Gingrich boasted that the program had cut $400,000 per year from the federal budget by eliminating 23 paid staff positions. "If there was any one symbol I wish we could be remembered by, I believe it should be an ice bucket," Gingrich said at the time. "We didn't authorize a study, we didn't phase it out, we didn't call for a training program, we just went cold turkey."

"If there was any one symbol I wish we could be remembered by, I believe it should be an ice bucket," said Gingrich.

It was, to be sure, an absurd perk. One Democratic aide told the New York Times in 1994 that, "We tried to get it stopped, but it keeps coming—from the ice machine in the heavens, I guess"; the paper found no compelling reason why the deliveries still continued, but noted that Hill sources said "it is unacceptable for lawmakers to drink warm soda."

But, bucket-tour notwithstanding, Gingrich didn't actually end the free ice service at the Capitol; he just created a new system. Under Gingrich's watchful eye, Congress set up five ice distribution centers around the Capitol complex, so that staffers could haul their daily load of ice back to the offices. The ice was still free, in other words, and it was still being distributed. According to Roll Call at the time, Gingrich was himself taking advantage of the free ice entitlement he derided, dispatching a staffer to the ice distribution center twice a day to fill a bucket. And he wasn't the only politician making the ice bucket a campaign issue. His Democratic opponent in 1996, Michael Coles, duly noted that while the Speaker had chipped $400,000 off the ice entitlement block, "Mr. Gingrich increased his office budget by $600,000—a difference, measured in ice terms, of more than 130,000 bags of ice."

There's this thing about management consultants: they're all about trimming inefficiencies wherever and whenever they can. Often, that means eliminating wasteful overhead—in some cases, by firing people—to help businesses save money.

So it makes a certain amount of sense that Mitt Romney's plan for fixing programs for low-income Americans is about sweeping out the federal bureaucratic overlords that administer them. At Sunday's Meet the Press debate, Romney said that federal administrative costs siphon up the bulk of federal spending on Medicaid, food stamps, and housing vouchers. "You have massive overhead, with government bureaucrats in Washington administering all these programs, [with] very little of the money that’s actually needed by those that really need help, those that can’t care for themselves, actually reaches them," Romney said. His prescription: hand program funding directly over to the states, which, arguably, would put many of the people who administer the programs in Washington out of work.

There's just one thing: between 90 and 99 percent of federal spending on the programs Romney wants to Bain back into stability reaches low-income recipients, according to the Center on Budget and Policy Priorities:

US Army Col. Todd Royar and Army Maj. Travis Habhab land their AH-64 Apache helicopter as the sun sets over Kandahar Airfield, Afghanistan on December 25, 2011. Photo by the US Army.


[NOTE: This post is being regularly updated with new developments, including reactions from US authorities, the Taliban, and the media. Scroll to the bottom for the latest.]

The Marine Corps is investigating a YouTube video posted early Wednesday that appears to show four Marines urinating on the heads of Afghans they'd just killed in a firefight. "Have a great day, buddy," one of the Marines can be heard saying on the footage.

The video was posted to YouTube by a user calling himself "semperfilonevoice," a play on the Corps' "Semper Fidelis" motto that suggests the poster might be a Marine with regrets about the warfighters' conduct. (The video, posted by London's Daily Telegraph and TMZ earlier today, is also reposted below. Warning: It contains graphic content.)

The poster of the video alleges that the urinators are members of Scout Sniper Team 4, an elite advance combat unit within the Camp Lejeune, N.C.-based Third Battalion, Second Marines. Their identities remain unknown at this point, but the video does contain at least one clue suggesting that's plausible. One service member in the video can be seen holding an M40 rifle, which is typically issued to sniper teams, but not to regular line units. Elements of the 3/2 Marines have seen some fierce fighting in Afghanistan, including a deployment last year to the province of Now Zad—called "Apocalypse Now Zad" by some—in which seven American fighters lost their lives.

Attempts by Mother Jones to contact the poster of the video were unsuccessful; calls to the 2nd Marine Division—the 3/2's parent unit—and to the Pentagon seeking further information about the video were not immediately returned. But a Marine spokesperson told TMZ that the video would be "fully investigated." "While we have not yet verified the origin or authenticity of this video, the actions portrayed are not consistent with our core values and are not indicative of the character of the Marines in our Corps," she said. It's also important to note that it remains unclear as to where and when the video footage was taken.

According to the Geneva Conventions, which the US military observes, combatants must "at all times, and particularly after an for the dead and prevent their being despoiled." They are also required to "ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found." (The UK's rules for its military members are even more explicit, threatening court-martial for any soldier for "maltreatment" of a dead enemy.)

The recently posted video hasn't yet caused a serious outcry at home or abroad, but it certainly has that potential. Perceived and real American offenses against Muslims have touched off angry riots and anti-US anger in the past—from plans to burn Korans, to the rumored use of pork-coated bullets and rifles bearing Bible verses against Muslim targets, to stepping and urinating on detainees' Islamic holy books at Guantanamo.

Sentiments were divided among some YouTube commenters regarding the video. "You must be living under a rock, have you EVER seen the videos of the Taliban with dead body pieces," one defender of the alleged Marines wrote. "This video is nothing, ABSOLUTELY nothing´╗┐ compared to what they did to us Americans."

But one commenter, who identified himself as a veteran, was less willing to dismiss the behavior in the video: "Thanks fellas, you just pissed´╗┐ away everything me and my boys fought for."

UPDATE 1, Thursday, Jan. 12, 7:00 a.m. EST: The original video has been removed from YouTube by the user; thanks to MoJo reader Craig Boehman for providing the copy below.

UPDATE 2, Thursday, 10:00 a.m. EST: In a statement to the BBC, Pentagon spokesman and Navy Capt. John Kirby said: "We are deeply troubled by the video. Whoever it is, and whatever the circumstances—which we know is under investigation—it is egregious behaviour and unacceptable for a member of the military." The Marine Corps headquarters gave a similar message: "The actions portrayed are not consistent with our core values and are not indicative of the character of the Marines in our Corps. This matter will be fully investigated.''

UPDATE 3, Thursday, 1:30 p.m. EST: A Taliban spokesman tells the Christian Science Monitor that the video makes no difference in the group's ongoing peace talks with the Western powers. "It's not a new thing that has happened. It's normal with the American forces and their allies. The foreign forces have always discriminated and abused human rights in Afghanistan," Qari Yousef Ahmadi told the news site. He added, however, "It's an act that makes a person feel ashamed to watch it or talk about it."

As media reactions to the video go, few so far are as powerful as this one from Hamilton Nolan of Gawker, titled "Piss on War: Death, Desecration, and Afghanistan." It must be read in its entirety, but here's a graphic excerpt:

Excerpt from "Piss on War": Courtesy GawkerExcerpt from "Piss on War": Courtesy Gawker

UPDATE 4, Thursday, 1:40 p.m. EST: A Marine Corps source speaking anonymously tells Reuters that the service has confirmed the video is authentic, and it's identified the unit shown in the tape. It's believed to be a contingent of the 3/2 Marines, which is consistent with the statements of the anonymous user who originally published the video to YouTube.

At a press conference, Secretary of State Hillary Clinton addressed what she called the "deplorable behavior" in the video, adding that "the United States remains strongly committed to helping build a secure, peaceful, prosperous, democratic future for the people of Afghanistan":

UPDATE 5: Thursday, 4:00 p.m. EST: My colleague Adam Serwer flags a blog post from Islamophobe extraordinaire Pam Geller extolling the video. She writes: "I love these Marines. Perhaps this is the infidel interpretation of the Islamic ritual of washing and preparing the body for burial." Surprisingly, there's more fascinating backstory here, and Adam's got it.

UPDATE 6: Thursday, 6:45 p.m. EST: Reuters reports that two of the four Marines seen in a video have been identified. Apparently the footage could be from last year: According to an unnamed Marine Corps official, the two men identified are still part of the 3rd Battalion, 2nd Marines, based out of Camp Lejeune, and their unit served in Afghanistan's Helmand province from March until September of 2011.

UPDATE 7: Thursday, 8:30 p.m. EST: Geller isn't the only right-winger to offer a repugnant response to the video. Radio host Dana Loesch—who is also employed by CNN, where she appears regularly as a political commentator—cheered the Marines' behavior and said, "I'd drop trou and do it too."

UPDATE 8: Friday, Jan. 13, 1 p.m. EST: Where do the GOP presidential hopefuls stand on the Marine video? There's no way of knowing, because not one has released a statement on it, and no reporter has yet pressed them for an opinion. Even though 2008 presidential nominee John McCain said the video "does great damage" and makes him "sad," and the commandant of the Marine Corps condemned it, and a Medal of Honor recipient said there was no excuse for it, and a bevy of Marines and other combat veterans past and present have said they're "universally disgusted by it and ashamed," there's been nary a word of condemnation—or even acknowledgement—from the GOP 2012 field. The candidates have long attacked President Obama's anti-terrorism and war strategies and made the case that they can keep America safer, but on this issue they're curiously silent. There are three more Republican debates between now and Tuesday, when voters in South Carolina select their preferred candidate; it remains to be seen whether the aspiring commanders-in-chief will address the Marines' behavior, and its implications for US foreign policy and a culture of respect, dignity, and the rule of law.

UPDATE 9: Friday, 2:10 p.m. EST: CNN pundit Dana Loesch has doubled down on her comments from yesterday. "I was using absurdity to highlight absurdity," she says, claiming that progressives have distorted her message and are attacking her unfairly. Decide for yourself what she meant—here's a more complete transcript of what she said on her radio show on Thursday:

Now we have a bunch of progressives that are talking smack about our military because there were marines caught urinating on corpses, Taliban corpses....Can someone explain to me if there's supposed to be a scandal that someone pees on the corpse of a Taliban fighter? Someone who, as part of an organization, murdered over 3,000 Americans? I'd drop trou and do it too. That's me though. I want a million cool points for these guys. Is that harsh to say? Come on people, this is a war. What do you think this is?

Loesch also said this morning that the "Left is attacking me so they can avoid calling this Obama's Abu Ghraib. It can't be Obama's fault like it was Bush's." It's long been known that the atrocities at Abu Ghraib were the result of policy designed and directed from inside the Bush White House. On what basis does Loesch equate the behavior of these four Marines? That's a question she's not answering.

Meanwhile, CNN—which has paid Loesch since last February to be part of the "Best Political Team on Television"—is distancing itself from the situation. Spokesperson Edie Emery said in a statement to Politico, "CNN contributors are commentators who express a wide range of viewpoints—on and off of CNN—that often provoke strong agreement or disagreement. Their viewpoints are their own."

UPDATE 10: Friday, 3:15 p.m. EST: The Marines have appointed a general to handle the investigation into the urination video and decide what disciplinary action should be taken against the service members who appeared in or distributed the video, Stars and Stripes reports. Lt. Gen. Thomas Waldhauser's investigation will be in addition to a criminal probe already set up by the Naval Criminal Investigative Service. Additionally, the commander of NATO forces in Afghanistan announced the military will run mandatory training for all troops on how to handle casualties. "I require all [NATO] personnel to treat all coalition, Afghan National Security Forces, civilians and insurgent dead with the appropriate dignity and respect," the commander, Lt. Gen. Curtis Scaparrotti, said Friday.

Rep. Allen West (R-Fla.) wrote an email, published by the Weekly Standard, castigating critics of the Marines shown in the video. "All these over-emotional pundits and armchair quarterbacks need to chill. Does anyone remember the two Soldiers from the 101st Airborne Division who were beheaded and gutted in Iraq?" He conceded that the Marines should be punished administratively, the lowest level of discipline permitted under military law, and added, "As for everyone else, unless you have been shot at by the Taliban, shut your mouth, war is hell." West, an Iraq vet who resigned from the Army after "menacing" and allegedly "mock executing" an Iraq police officer during an interrogation, is a tea party GOP freshman who's gained notoriety for uncivil and Islamphobic statements in the past.

By contrast, TIME magazine's Nate Rawlings, who also served two tours in Iraq as an Army combat officer, writes that while killing is a part of the job, it is "not a sport or a game." "You can't teach someone how to be human," he writes, but "you can lead and inspire and teach and cajole and most importantly supervise young troops. That’s the way to prevent these things from happening again."

UPDATE 11: Sunday, 1:30 p.m. EST: A Republican presidential candidate has finally weighed in on the video controversy—expressing outrage at an alleged anti-military bias in the US government, rather than at the Marine "kids" shown urinating on corpses in the video. "These kids made a mistake, there's no doubt about it," Rick Perry told CNN's Candy Crowley Sunday morning (video below). "But to call it a criminal act, I think, is over the top." Perry also suggested that Patton and Churchill had engaged in similar behavior in their times. "Obviously, 18, 19-year-olds make stupid mistakes all too often," Perry said. "What's really disturbing to me is just, kind of, the over-the-top-rhetoric from this administration and their disdain for the military." As previous updates show, the Marines, the Naval Criminal Investigative Service, and the three-star Army general in charge of Western forces in Afghanistan all took clear stances against the video and initiated the criminal investigations. It's unclear whether Perry meant to argue that these military institutions, too, were showing "disdain for the military."

UPDATE 12: Sunday, 3:30 p.m. EST: Animal activists are using the Marine video furor to draw attention to another video, uploaded anonymously to the internet last November, that appears to show US Army soldiers beating a sheep to unconsciousness (and possibly death) by repeated blows to the head with an aluminum baseball bat. (Warning: The video is graphic and disturbing.) Several of the soldiers can be heard laughing as the sheep attempts to stand up and is hit, again and again.

PETA President Ingrid Newkirk discussed the video on Huffington Post Friday. "PETA did what it always does when someone blows the whistle on these incidents of gratuitous cruelty: We wrote to Secretary of the Army John McHugh [PDF] and then, when no answer was forthcoming, to other high-ranking officers," she wrote. "No one—not PETA and not the thousands of people who have seen this video and are rightly disturbed by it—has received any acknowledgment, not even a single comforting word, that an investigation has been started."

The Supreme Court.

Lopsided Supreme Court rulings can often give insight into the character and philosophy of the justices. The court's Tuesday decision in Smith v. Cain, which overturned the murder conviction of a Louisiana man named Juan Smith, offers one such example.

The story is fairly simple: Smith was convicted of killing five people on the testimony of a single eyewitness. At trial, the prosecutors conveniently forgot to provide the defense with a detectives' notes, which indicated that the eyewitness had initially told the detective that he "could not ID anyone because [he] couldn't see faces" and "would not know them if [he] saw them." That meant that since there was no physical evidence linking Smith to the crime, the prosecution's entire case hinged on the testimony of a single eyewitness (a notoriously unreliable yet persuasive form of evidence) who initially said he could not identify the killer.

Eight justices saw this as significant enough to grant Smith a new trial. Justice John Roberts wrote the six-page majority opinion.

In his dissent, Justice Clarence Thomas spent 19 pages arguing that the jury would have come down the same way even if the evidence had been included. He explained how he found most of the potentially exculpatory evidence in the case unpersuasive or sees it as implicating Smith. It's clear Thomas believes Smith is guilty.

This is not a dog, but you get the point.

As a service to our readers, every day we are delivering a classic moment from the political life of Newt Gingrich—until he either clinches the nomination or bows out.

In 2009—shortly after accidentally naming the founder of Pink Visual, a California porn superstore, "Entrepreneur of the Year"—Newt Gingrich's Business Defense and Advisory Council accidentally bestowed the same award to the Dallas strip club "The Lodge." Or tried to, anyway. Dawn Rizos, the club's owner, received a letter out of the blue from Gingrich's 527, American Solutions for Winning the Future, informing her that "Newt is looking forward to finally meeting you face to face"—and asking for her to make a $5,000 contribution to the group in order to attend. She happily obliged and booked her travel arrangements, only to find that her invitation was rescinded and her donation returned.

But all was not lost. After receiving her refund, Rizos decided to take her $5,000 and put it good use in a way that would honor the man who'd spurned her: She built a shelter for pit bulls, "Newt's Nook," at the Animal Guardians sanctuary 35 minutes north of Dallas. As Pegasus News explained:

The Lodge, the country’s best-known and most-honored gentlemen’s club, helps hundreds of people support their families and further their educations, while setting industry standards for beauty, elegance and integrity.

"So we weren’t surprised to get the award, and we were disappointed to suddenly be rejected," Rizos said. "But instead of holding a grudge, we decided to make something positive out of his bad manners."

Gingrich, for his part, recently launched the webite "Pets With Newt," which invites supporters to "send photos of your pet," and includes a list of Newt's 12 favorite zoos ("The Omaha Zoo is one of the three best zoos in America. Its nocturnal house is the best in the world.") Perhaps Rizos will get another shot at Gingrich's endorsement.