As President Barack Obama approaches the daunting challenges of his second term, confronting such complex issues as the "Fiscal Cliff," unemployment, immigration and foreign wars, it is imperative that he also devote the authority and resources of his administration to restoring the Rule of Law.
The American ideal of the Rule of Law took a beating under President Bush and four years ago candidate Obama campaigned to change all that. "These last few years we've seen an unacceptable abuse of power at home," Obama said in Chicago in October of 2007. "We've paid a heavy price for having a president whose priority is expanding his own power."
Yet, last May the New York Times assessed the president's record on national security and concluded that "nothing else in Mr. Obama's first term has baffled liberal supporters and confounded conservative critics alike as his aggressive counterterrorism record." In July, Georgetown University law professor David Cole provided the details:
Obama has radically escalated drone strikes, continued military detention without charge and military commissions for trying terrorists, prosecuted more government officials for leaks than all prior presidents combined, maintained the discretion to render suspects to third countries, and opposed efforts to hold U.S. officials accountable for authorizing torture of terror suspects.
The contrast between Obama's campaign promises and his performance in office during his first term is stark. In December 20, 2007, the Boston Globe published the president-elect's responses to a questionnaire designed to elicit comparisons with the policies of the outgoing Bush administration.
Asked if there were circumstances where the president as commander-in-chief is free to disregard international human rights treaties that the U.S. Senate has ratified, Obama responded that it is "illegal and unwise for the president to disregard international human rights treaties that have been ratified by the United States Senate, including and especially the Geneva Conventions. The commander-in-chief power does not allow the president to defy those treaties."
As far as whether the president had "inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes," Obama responded that the "Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes."
Asked whether the Constitution permits "a president to detain U.S. citizens without charges as unlawful enemy combatants," Obama was unequivocal. "No. I reject the Bush administration's claim that the president has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants."
Asked if "Congress prohibits a specific interrogation technique, can the president instruct his subordinates to employ that technique despite the statute," Obama again was unequivocal:
No. The president is not above the law, and not entitled to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As president I will abide by statutory prohibitions for all U.S. government personnel and contractors.
Asked if "any executive power the Bush administration has claimed or exercised" was unconstitutional, Obama declared "I reject the view that the president may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments." Significantly he added the "detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional," that "[w]arrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional" and the "violation of international treaties that have been ratified by the Senate, specifically the Geneva Conventions," and the "creation of military commissions, without congressional authorization," were both unlawful (as the Supreme Court held) and "bad ideas."
However, on New Year's Eve last year Obama signed the National Defense Authorization Act ("NDAA") which granted the government the power to put U.S. citizens in military detention indefinitely, without the usual recourse to civil courts. In particular, the law authorizes the detention of anyone who has "substantially supported" al Qaeda, the Taliban, or "associated" forces that are engaged in hostilities against the United States or its coalition partners.
A lawsuit brought by journalists Chris Hedges, Daniel Ellsberg and Noam Chomsky, argues that the law is so broad that it infringes on their own First Amendment rights. Over strenuous arguments from the Obama Justice Department, U.S. District Judge Katherine Forrest, a recent Obama appointee, granted a preliminary injunction. She wrote that the government did not argue that "activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights. To the extent that § 1021(b)(2) purports to encompass protected First Amendment activities, it is unconstitutionally overbroad."
The judge also held that the "due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention -- potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity -- and that specificity is absent from § 1021(b)(2)."
Contrary to Obama's campaign pledges, his Justice Department strenuously defended the provisions of the NDAA allowing U.S. citizens to be indefinite detained without traditional recourse to judicial review. Echoing precisely the arguments Bush's lawyers made for years, Obama's lawyers told the court that the issue was none of its business, and that at most, courts could consider individual habeas corpus petitions after U.S. citizens have already been detained. But the court would have none of it. "That argument is without merit and, indeed, dangerous ... If only habeas review is available to those detained under § 1021(b)(2), even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated. No court can accept this proposition and adhere truthfully to its oath."
Instead of accepting this wise and well-considered judicial analysis, the Obama Justice Department fought on and succeeded in getting the injunction reversed.
Despite its lofty promises to restore the Rule of Law, the Obama administration has vastly expanded the use of drones to kill U.S. citizens, civilians and alleged terrorists. On November 16, Congressman Dennis Kucinich (D-Ohio) hosted a Congressional briefing to examine the U.S. policy regarding the use of armed drones. U.S. drone strikes are estimated to have killed thousands of people, including 3,378 in Pakistan, 1,952 in Yemen and 170 in Somalia, all sovereign countries with which the United States is not at war.
According to news reports, President Obama maintains a list of alleged militants to be assassinated. Some are U.S. citizens. None will get to plead his case. The president tells us to trust that this is all perfectly legal and constitutional, even though Congress is not allowed to see any legal justification.
According to Rep. Kucinich, "targeted killing of suspects is becoming institutionalized as a permanent feature of the U.S. counterterrorism strategy, without any oversight, transparency or accountability. Victims of drone strikes - including U.S. citizens -- are secretly stripped of their right to due process and are arbitrarily deprived of their life, in violation of international human rights law."
As the authors of a recent groundbreaking report by Stanford and New York Universities on drones in Pakistan powerfully stated:
"In the United States, the dominant narrative about the use of drones in Pakistan is of a surgically precise and effective tool that makes the U.S. safer by enabling 'targeted killing' of terrorists, with minimal downsides of collateral impacts. This narrative is false."
Four years into the Obama administration's vast expansion of the program, members of Congress and the public are still being denied access to internal legal memos, which purportedly serve as the basis of the legal justification for such killings.
"These strikes do not occur in a vacuum," according to Rep. Kucinich. "They have very real consequences for our long-term national security. In Pakistan, they have fueled significant anti-American sentiment and serve as a powerful recruitment tool for terrorists. According to some estimates, our drone strikes have resulted in the death and injury of thousands of innocent civilians. Despite repeated claims that such drone strikes are vital to ensuring our safety, the number of 'high-level' targets killed as a percentage of total casualties is extremely low -- estimated at just two percent."
At the Congressional briefing, Rep. Kucinch declared:
The world is now our battlefield. Our credibility as a voice for human rights has been undermined. A dangerous precedent has been set for all nations. We must reject the notion that Congress and the American people have to be kept in the dark when it comes to modern warfare. We must begin with a full and robust debate on the ramifications of these policies. We must insist upon full accountability and transparency.
Finally, President Obama's legacy will forever be tarnished, and our constitutional system forever diminished, if he persists in blindly refusing to authorize his Justice Department to launch a comprehensive investigation (and if warranted to file criminal charges), to determine whether officials in the Bush administration violated federal law and treaty obligations in its eight-year "War on Terror."
Was it all cynical electioneering when President-Elect Obama told the Boston Globe in 2007, with reference to specific executive powers the Bush administration had claimed or exercised, that he rejected "the view that the President may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments;" that the "detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional," that "[w]arrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional"?
The president itemized the specific counts of an indictment yet in his first four years he utterly failed to take any step whatsoever to hold the Bush administration accountable for any of its crimes, preferring instead to use the vast resources of his Justice Department to actual defend members of the Bush administration on the one hand and vigorously prosecute whistle-blowers on the other.
Progressives, civil libertarians, faith leaders and Democrats by and large held their noses during the 2012 presidential campaign regarding the president's abject failure to restore the Rule of Law and worse yet his dangerous expansion of unilateral executive power, fearing far worse if the right-wing of the Republican Party took over the White House and, in addition to implementing other catastrophic policies, secured the power to solidify a conservative majority on the Supreme Court for generations to come.
But that disaster has been avoided. And now everyone who cares about the future of the Constitution must organize, advocate and demand that President Obama spend a considerable share of his political capital to fulfill his constitutional obligation to "take care that the laws be faithfully executed."
For if he is excused by the rest of us from his solemn duty, we should tremble over the prospect that the unrestrained executive powers, born in the Bush administration, to subject citizens and non-citizens alike to ever widening abuses, including unwarranted surveillance, indefinite detention, torture and targeted killings, which have since gone unchecked and indeed have taken root and been cultivated during the Obama administration, will spread and grow even stronger in future administrations, blossoming with poisonous thorns and unbreakable branches, choking off constitutional rights, suffocating dissent and strangling democracy.
Stephen Rohde is a constitutional lawyer, lecturer, writer and political activist. He is a founder and Chair of Interfaith Communities United for Justice and Peace, Chair of the ACLU Foundation of Southern California and the author of American Words of Freedom and Freedom of Assembly.