Tag Archives: Obama

In National Security, Obama Minimizes Role of Courts

Image

In matters of national security, the Obama administration’s disrespect for the courts can be seen in three examples.

  1. 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”.
  2. 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.
  3. 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.

Good Speech, Mr. Obama–If Only It Were True

Screen Shot 2013-05-29 at 12.42.56 AMI’ll give President Obama credit: he’s a heck of a speaker. Speaking to the National Defense University this past Thursday, Obama preached a deep concern for human life and civil liberties. It was a great speech. There’s only one problem: very little of it is true.

Let’s go through the speech and compare rhetoric to reality:

Rhetoric: “America cannot take strikes wherever we choose—our actions are bound by consultations with partners, and respect for state sovereignty.

Reality: The news that Obama respects state sovereignty must come as a surprise to Pakistan. Their elected officials have repeatedly claimed that US drone strikes violate their sovereignty. Indeed, a Peshawar high court claimed the strikes are illegal. And yet Obama has made no plan to stop these attacks.

More broadly, Obama’s rhetoric implies that his strikes are geographically constrained—that he cannot strike “wherever we choose”. But how geographically constrained can they really be? Pakistan, Yemen, Iraq, and Afghanistan have all suffered drone strikes. Outside of the Middle East, he has targeted Mali, Somalia, and North Africa. The drone war now rages on 2 continents and at least 7 countries; if Obama truly cannot strike “wherever we choose”, than where on earth can he not strike?

Rhetoric: “And before any strike is taken, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set”

Reality: According to the New York Times, the Obama administration reclassifies all victims of drone strikes as “militants”, provided they’re males age 18 or older. That means male shopkeepers, bakers, and fathers are declared “militants” just because they died in a military strike. Obama has embraced the same classification we used in Vietnam: “How do we know they’re militants? Because they’re dead”.

Obama can claim that his administration tries not to kill civilians, but his changing the definition of the word renders this claim meaningless. I try hard to avoid references to George Orwell’s most famous book, but to reclassify any male killed as a “militant”—be they bakers, shopkeepers, etc—and then to claim that we try not to kill civilians is, frankly, doublespeak.

Rhetoric: “That means that – even after Boston – we do not deport someone or throw someone in prison in the absence of evidence”

Reality: Obama signed the 2012 NDAA, and the indefinite detention provision therein (Section 1021) expressly allows the government to “throw someone (ie a US citizen) in prison in the absence of evidence”. Admittedly, Mr. Obama has not used this power yet. But by signing both bills, he gave not only himself but also every future president the power to throw US citizens in prison without evidence.

One could argue that Obama had no choice but to sign the bill, since it was passed by veto-proof majorities in both houses. But given the obvious unconstitutionality (not to mention unpopularity) of the indefinite detention provision, Obama could certainly have used his bully pulpit to rally the people and convince Congress to strike Section 1021. Alternatively, he could have backed up a veto threat with Congressional lobbying, and probably convinced at least 1/3 of Senators or Congressmen to vote against the bill. That would have allowed Obama to veto the bill and protect US citizens’ right to trial. Put simply, the most powerful man in the world could have taken a stand and won. The fact that he refused to do so says much more about his respect (or lack thereof) for the 6th Amendment than does his speech on Thursday.

At the very least, Obama could have abstained from suing to keep the indefinite detention provisions in place.

Rhetoric: “a perpetual war – through drones or Special Forces or troop deployments – will prove self-defeating, and alter our country in troubling ways”

Reality: According to Obama officials, the war on terror is already perpetual.  According to Michael Sheehan, assistant secretary of defense for special operations and low-intensity conflict, the war will continue “At least 10 to 20 years” after 2012. Admittedly, Obama cannot be blamed for getting us into the war on terror. But rather than end it, his administration had made plans to perpetuate the conflict into the 2030s. As Wired’s Spencer Ackerman put it, “Welcome to America’s Thirty Years War”.

One reason the war on terror will go on for so long is because the US creates its own enemies through blowback. For those unfamiliar with the term, “blowback” is the idea that when we bomb a village in (say) Pakistan, the survivors don’t like us very much. Children who lose parents grow up to hate the US; fathers who lost children sign up to wage war on the nation that bombed their home. By bombing villages and killing civilians, the US fuels hatred and inadvertently insures a steady supply of recruits for our enemies. Obama’s wartime policies are probably undertaken with the best of intentions; but they are inadvertently sowing the seeds for the sort of perpetual war that he condemned on Thursday.

Rhetoric: “I do not believe it would be constitutional for the government to target and kill any U.S. citizen – with a drone, or a shotgun – without due process”.

Reality: Obama has, to date, ordered drone strikes that have killed at least 4 US citizens. He has done so without trying these citizens and without judicial approval; his idea of “due process” seems to consist of him reading over someone’s file and deciding whether or not the target merits death. No doubt he takes this responsibility seriously. But still, if that—an executive unilaterally deciding whether or not to kill a citizen—represents due process, than every tyrant in history has exercised due process just by having final approval on who their regime assassinates.

This is not to say that Mr. Obama is a tyrant; it is only to point out that due process means more than executive decision on assassination targets. Due process means the rule of law and trial in court. Under no definition of the term can Obama claim that’s what he exercised.

And, of course….Gitmo.

Rhetoric: “there is no justification beyond politics for Congress to prevent us from closing a facility (ie Guantanamo Bay) that should never have been opened”

Reality: Obama cannot close Guantanamo Bay alone, but his actions have actually expanded—rather than diminished—the human rights abuses going on inside. For instance, he approved holding 47 prisoners indefinitely, without charge or trial, in the facility. Similarly, according to MSNBC his Justice Department, “has routinely fought court orders to release detainees who won their habeas cases in the D.C. Circuit”. Many of these fights have been successful, leaving detainees behind bars.  If Obama is serious about ending Guantanamo Bay, he shouldn’t be so active in expanding the abuses that occur inside.

Obama is right to blame Congress: it takes a Congressional act to close the facility, and Congress’ failure to do so is shameful. But Obama is far from powerless in this fight; if he were serious about ending the human rights abuses at Guantanamo Bay, there is a laundry list of actions he could take. While Obama can shell out some blame for what happens at Guantanamo Bay, he should reserve the lion’s share for himself.

*   *   *

I was excited when President Obama took office in 2009; I looked forward to a more humane approach to the war on terror. I looked forward to a president who understood and valued civil liberties. But while Mr. Obama proved on Thursday that he can talk that particular talk, his walk tells a very different story.