Will Obama the Constitutional Lawyer Please Stand Up?
But those who are not brought before military commissions or civilian courts—including Americans abroad whose names are placed on a kill list—have no rights. They are condemned to death by drone with no chance to contest the secret evidence against them, which may be as flawed as the intelligence leading to the Iraq War. Obama has ignored calls to cite some legal justification for taking on the extraordinary power of assassination, and he has also refused to open to scrutiny the secret selection process he has established.
A wish list of actions to restore the Constitution and the rule of law to the country’s counterterrorism efforts runs the gamut from the esoteric to the obvious. It includes fulfilling Obama’s stated goal of closing Guantánamo and repatriating exonerated prisoners—moves that Congress has impeded by inserting restrictions into military funding bills that Obama finds awkward to veto. So as he signed the National Defense Authorization Act of 2013 in early January, he resorted to a signing statement asserting his constitutional authority to ignore the law’s obstacles to transferring inmates from the prisons at Guantánamo and Bagram airbase in Afghanistan.
Obama could also reject indefinite imprisonment without trial. He could press Congress for an explicit prohibition against the military detention of any civilian seized in the United States—a power whose legality under current statute is the subject of debate.
The list goes on and on. Return the country to the tight, pre-9/11 secret warrant requirements for electronic surveillance. Curtail the use of warrantless “national security letters.” Narrow the scope of what can be prosecuted as “material support” for terrorism. Stop invoking state secrecy to block lawsuits by torture victims. Halt the widespread infiltration of American Muslim communities. Use FBI sting operations more judiciously to avoid luring hapless wannabes into manufactured plots. Allow groups officially branded as terrorist organizations to see the evidence against them and mount fair challenges to being so designated. Appoint a commission with broad powers to investigate the abuses of the last decade.
Beyond counterterrorism, Obama could initiate significant change. True immigration reform means more than visas and amnesty; it should grant constitutional rights to those jailed under an administrative system that now denies them the government-provided lawyers and due process available to criminal defendants.
Ordinary criminal procedures having nothing to do with counterterrorism also stand in need of overhaul and presidential leadership. In its first term, the Obama administration took the wrong side on key issues: it opposed new rules on the timely disclosure of exculpatory evidence, for example, and argued unsuccessfully in the Supreme Court that police should be permitted to install GPS devices to track any vehicle without showing probable cause and getting a warrant, as required by the Fourth Amendment. In court cases, Obama’s Justice Department and solicitor general have endorsed expansive powers and unqualified immunity for intelligence and law enforcement personnel who violate citizens’ rights.
If his second term resembles his first, Obama will leave the country with an inheritance more threatening than crime or terrorism. The danger lies in the enormous authority being provided to the executive branch, power that is increasingly embedded in statutes and case law. The president and Attorney General Eric Holder seem to be saying, “Trust us,” as when Obama declared that he would “not authorize the indefinite military detention without trial of American citizens”—even as he signed the National Defense Authorization Act, which may allow just that. Perhaps this president is a good guy at heart, but what about the next one… and the next?
“I’d suggest to Obama that he read The Lord of the Rings,” says Susan Herman. “He’s accepted these powerful weapons, which he and Eric Holder are going to use wisely. Having these powerful weapons in the hands of the executive is dangerous. He’s leaving a legacy that can be misused.”
From Cuba to climate change to criminal justice, progressives must push the president to act—and forge a better future. Read “Yes, He Can: Twenty Ways Obama Can Use Executive Power to Push a Progressive Agenda.”