In matters of national security, the Obama administration’s disrespect for the courts can be seen in three examples.
- In 2012, the relatives of two United States citizens killed by drones filed a lawsuit charging that the deaths were unconstitutional. Defending the government in court, deputy assistant attorney general Brian Hauck argued that the courts have no role to play in judging political assassinations. Americans’ right to life, he claimed, cannot be enforced either before or after the targets were killed. He further argued that “Courts don’t have the apparatus to analyze” issues such as political assassination, and that such decisions must be handled entirely by the executive branch. As Glenn Greenwald put it, you have rights, “It’s just that nobody can enforce them or do anything to us (the government) when we violate them”.
- In July 2012, Senator Ron Wyden (D-Ore.), a member of the Senate Intelligence Committee, learned that the FISA court had ruled at least part of the administration’s surveillance to be unconstitutional. When the Electronic Frontier Foundation filed a Freedom of Information Act request for said court opinion, it was given the run-around by the DoJ. The DoJ took four months to respond to the request, and their eventual response was that the opinion was classified. Apparently even when the administration is caught red-handed doing something unconstitutional, the American people aren’t allowed to know what it is.
- If the NSA wants to gather information on a target, they have to go through the FISA court—but they can determine for themselves when the court’s requirements have been met. They submit the general guidelines for their request—not including the specific targets—and the FISA court then approves those guidelines. The NSA then determines, for itself, whether or not its investigation stays within the bounds of the guidelines. Now it’s possible that they are Constitutional hawks who stay strictly within the bounds of the FISA court’s guidelines. But, given the Obama administration’s willingness to redefine key legal language, I’m inclined to doubt such a claim. And it seems unlikely the NSA will be coming forward anytime soon to add more transparency to their dealings.
I’m not going to venture into hyperbole and start calling our president “King Obama”. I’m not penning any sort of broad expose of the relationship of the executive branch and the judicial branch. But these three cases do indicate that, when it comes to national security, Obama prefers to keep the courts out.