The Imperial Presidency

Barack Obama is the most powerful president in the history of the United States. He has the authority and the means to kill anyone he chooses, anytime, anywhere without any requirement to justify, account for or report his actions to anyone; and this vast authority is derived solely from secret, unpublished legal theories contained in memorandums that have been developed by attorneys working for the president that he refused to share – even with the chairs of the Congressional Intelligence Committees – until a few days ago.

This unprecedented concentration of power raises many profound questions. If the president of a democracy governed by a constitution based on checks and balances has unchecked power; do we still have a democracy? What exactly is it that we are fighting for; who are we fighting; where are we fighting them, and what are the limits, if any, on the president’s authority to autonomously and secretly wage this fight? If the president can arbitrarily kill one American (and accidentally kill three more), is there anything to prevent him from arbitrarily killing any American?

Fortunately, CIA Director David Petreaus’s resignation and the subsequent nomination of John Brennan to replace him has given Congress an opportunity to reassert itself and attempt to pry loose from the administration at least some of its secrets on the murky matter of drone killing.

It is heartening to see a growing number of Democrats and Republicans pushing back at this bald-faced overreach of executive power; but there is a long, long way to go before the proper Constitutional balance is restored.

“… I remain deeply troubled that this committee has not yet received the materials I have requested regarding the legal rationale for the targeted killing of United States citizens overseas,” Vermont Sen. Patrick Leahy, Chairman of the Senate Judiciary Committee, said to Attorney General Eric Holder at a recent hearing. “I am not alone in my frustration or in my waning patience. The relevant Office of Legal Counsel memoranda should have been provided to members of this committee. It is our responsibility to ensure that the tools at government’s disposal are used in a way that is consistent with our Constitution, laws and values.”

Precisely! Thank you Sen. Leahy.

Democratic Senators Ron Wyden of Oregon and Mark Udall of Colorado along with Maine Republican Susan Collins have demanded the release of all of the memos on killing Americans; “to bring the American people into this debate and for Congress to consider ways to ensure that the president’s sweeping authorities are subject to appropriate limitations, oversight and safeguards.”

Thank you senators.

Christopher Anders with the American Civil Liberties Union correctly labeled the latest disclosures; “an important first baby step towards restoring the checks and balances between Congress and the president.”

“Amazingly, the Obama administration continues to hide at least some of its legal opinions, even from the intelligence committees,” Anders said, correctly noting that all members of Congress should have access to the memos on targeted killings and that redacted copies should be made public.

Thanks to the ACLU for doggedly pursuing this matter.

I also applaud the recent efforts by Republican Senators Rand Paul of Kentucky and Ted Cruz of Texas to press Holder with hypothetical questions about the constitutional authority of the president to order the killing of an American in the United States. I’ve had those very same questions and I too am concerned by Holder’s parsed response that such a killing would be “inappropriate”.

Executing an American citizen without due process is wrong, period.

Thanks to Senators Paul and Cruz for standing up (quite literally for hours on end in Paul’s case) for the U.S. Constitution and the rule of law.

In theory at least President Obama appears to share these concerns because in the recent State of the Union address he said; “I recognize that in our democracy, no one should just take my word that we’re doing things the right way.”

That’s good to hear, but it is long past time for him to act on that theory.

I hope the skirmish over the Brennan nomination is just the first battle in a long war to restore the balance of power and the checks and balances that are the foundation on which our nation is built.

Until we claw our collective way back from the stunning retreat from our core values and principles that began on Sept. 12, 2001, Osama bin Laden and his cause have won.

In a related and similarly chilling recent development, the Supreme Court gave the president what amounts to an unfettered capacity to eavesdrop on international phone calls and e-mails without any plausible chance for judicial review of the probable cause that – presumably – warranted those searches.

The 5-4 majority in Clapper v. Amnesty International ruled that a coalition of journalists, lawyers and human rights advocates does not have standing to challenge a 2008 law that gave broad power to the executive branch to conduct surveillance aimed at persons overseas without an individual warrant. The effect of the ruling is that any meaningful judicial review of the warrantless surveillance program is all but impossible.

In essence the only people with the ability to assess the propriety of decisions to spy on Americans are those in the very small group that made the decision to conduct the surveillance in the first place. It’s a closed, secret loop entirely contained within the executive branch of the government that is now – thanks to the Supreme Court’s ruling in Clapper – effectively shielded from external review.

It seems odd that the same five activist Supreme Court justices that were willing to overturn a campaign finance law approved by the Congress and signed into law by the president (in order to protect the previously unarticulated first amendment rights of corporations) are now unwilling to confer on the country’s (human) citizens the standing necessary to litigate potential violations of their historic fourth amendment rights.

In closing, I’m dismayed at the seeming lack of concern that so many Americans seem to have with unbridled executive power. I wonder how so many Americans can work themselves into such a lather over a mandate to purchase health insurance that was created by a majority of Congress and signed into law by the President; yet so few appear to be the least bit concerned that the government can listen in on our phone conversations without ever being held accountable for having a justifiable probable cause or that the president’s lawyers have secretly bestowed on him the unilateral authority to incinerate anyone he chooses without any Congressional oversight.

The War on Terror has morphed into a war on the Constitution; and far too many are far too comfortable with that.