Executive power

  • June 6, 2013

    by Jeremy Leaming

    The Obama administration, obsessed with leaks of secret government actions, is likely seething over reporting by The Guardian’s Glenn Greenwald, Ewen MacAskill and Spencer Ackerman on the secretive order granting the federal government sweeping power to collect “telephone records of millions of US customers of Verizon,” regardless of any suspected connection to terrorist groups or activities.

    The report reveals an order from the secretive Foreign Intelligence Surveillance Court -- created by the Foreign Intellegince Surveillance Act of 1978 (FISA) -- granting power to the even more secretive National Security Agency to collect phone data over a three-month period. As The Guardian reporters and others note we have no idea if the FISA Court order is one in a series of orders granting the NSA ability to collect the information.

    Salon’s Alex Pareene notes that the nation’s intelligence agencies have continued to amass power for decades. Both parties and presidents have done nothing to rein in the NSA. “While the fact the NSA has the power to do this has been public for some time, we’ve never seen, until the Guardian obtained one, an actual Foreign Intelligence Surveillance Court warrant. They are very top secret. Someone will probably be prosecuted for leaking this one. That, in fact, is one of the primary issues civil libertarians, like the ACLU and the Electronic Frontier Foundation have been raising: If the way the administration interprets the law is secret, the law itself is effectively secret. Now we know more. But the recent history of the U.S. and domestic surveillance suggests knowing more won’t lead to doing anything about it.”

    The ACLU and other civil liberty groups and a few Senate Democrats have tried to raise concern over the unwieldy and largely unaccountable intelligence apparatus. In a June 5 press statement, the ACLU’s Deputy Legal Director Jameel Jaffer said, “From a civil liberties perspective, the program could hardly be any more alarming. It’s a program in which some untold number of innocent people have been put under the constant surveillance of government agents. It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of the unaccountable intelligence agencies.”

    In a piece for Cato at Liberty, Jim Harper looks at the indifference Americans have toward the FISA Court and the power of the nation’s intelligence apparatus. He notes that last summer and then in late December Congress reauthorized, expanded FISA powers for another five years, “continuing the government’s authority to collect data like this under secret court orders.” One of the staunchest supporters of expanding FISA powers was Sen. Dianne Feinstein (D-Calif.).

  • May 30, 2013

    by Jeremy Leaming

    President Obama’s address to the National Defense University was quickly embraced by many high-profile pundits as evidence the 44th president would actually and finally offer change one could believe in. Specifically, change from the way his predecessor presided over a never-ending war on terror.

    As noted here, during his May 23 speech the president provided some lofty rhetoric suggesting significant change was underway to counter intensifying criticism from civil libertarians and human rights advocates that the Obama administration is trampling fundamental constitutional principles and values while waging the so-called war on terror.

    The New York Times editorial board lauded Obama’s speech as “the most important statement on counterterrorism policy since the 2001 attacks, a momentous turning point in post 9/11 America. For the first time a president stated clearly and equivocally the state of perpetual warfare that began nearly 12 years ago is unsustainable for a democracy and must come to an end in the not-too-distant future.”

    Many other pundits also heralded the speech as a major shift in policy, while others, such as Alex Pareene warned that those concerned about human rights and civil liberties would likely be seriously disappointed.

    Today, The Times reported that Pakistani officials said a CIA drone strike had supposedly “killed a top member of the Pakistani Taliban, an attack that illustrated the continued murkiness of the rules that govern the United States’ targeted killing operations.” Before his much-trumpeted counterterrorism speech, The Times reported that the administration would start shifting control of the drone strikes from the CIA to the military.

    Obama’s speech received a lukewarm response from the ACLU, which has fought to obtain more information about the administration’s drone warfare. This blog also noted that a mere speech without action would not squelch criticism of counterterrorism efforts that violate U.S. and international law. The president declared early in his first term that we must protect fundamental values, such as due process under the law, as vigilantly as we wage war against terrorists. But such talk has too often proven hollow.

    In a piece for The Guardian, Glenn Greenwald scored the president for a trend of advancing rhetoric that doesn’t reflect reality. Greenwald wrote, “what should be beyond dispute at this point is that Obama’s speeches have very little to do with Obama’s actions, except to the extent that they often signal what he intends not to do. How many times does Obama have to deliver a speech embracing a set of values and policies, only to watch as he then proceeds to do the opposite, before one ceases to view his public proclamations as predictive of his future choices?”

  • May 29, 2013

    by Jeremy Leaming

    The Senate’s obstructionists, meaning the Republican caucus, are urging the U.S. Supreme Court to review and uphold a federal appeals court decision that greatly narrowed or rewrote the president’s power to make recess appointments.

    And that’s not terribly surprising. The case involves vacant seats on the National Labor Relations Board, an agency that Senate Republicans have fought to keep business friendly or inoperative. Republicans have convinced themselves that the NLRB, which was created to protect both rights of workers and employers, is all about making life tough on corporate America. The Senate Republicans are of course deluded, but consistent in their support of the powerful. (The Supreme Court could decide this summer to take the case for review.)

    In January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB held that President Obama ran afoul the Constitution when he appointed Sharon Block and Richard Griffin to vacant seats on the five-member agency during a 20-day recess of Congress. Obama made the appointments after Republicans continued to stall on considering the nominations. Article II, Section 2 of the Constitution grants the president authority to make recess appointments. The D.C. Circuit’s opinion was crafted by three-Republican appointees and was widely panned by legal scholars, noting that presidents have for a century used recess appointments to fill executive and judicial vacancies to help keep the government functioning. Also, as Ohio State University law school professor Peter Shane has pointed out, three other federal courts of appeals have ruled the other way, upholding the presidents’ recess appointment powers. (Another federal appeals court, however, has followed the wobbly D.C. Circuit’s opinion, so there is a split among the circuits, which heightens the chance the U.S. Supreme Court will jump into the mix and take Canning for review.)

    In a brief urging the high court to take Canning, 45 Republican senators argued that the D.C. Circuit’s opinion should be upheld. Such appointments, the brief states “have become a means to sidestep Senate confirmation.” They added, “In any case, the President himself has made clear that he will resort to recess appointments, and indeed has done so, precisely to circumvent perceived Senate opposition.” See Sahil Kapur’s reporting on the GOP brief.

    But there is nothing perceived about the opposition Republicans have mounted to hamstring the NLRB and for that matter greatly slow the efforts of the president to fill vacancies on the federal bench, which has resulted in a crisis on the bench with vacancies hovering around 80.

    Today, the Constitutional Accountability Center weighed in on the side of the Obama administration, which has asked the high court to take the case and reverse the D.C. Circuit.

  • May 29, 2013
    Guest Post

    by Sam Kleiner, a law student at Yale Law School and member of the ACS Yale Law School Chapter.

    In his widely-noted speech at the Oxford Union, Harold Koh (pictured) invited us to imagine a different response to September 11. It's easy to think that the path taken by the Bush administration was driven by a pre-destined sense of necessity, and Koh's invocation of a President Gore (a timely counter-factual with Justice Sandra Day O'Connor's musings on that election and the Supreme Court’s involvement), offers an alternative/hypothetical response in the time-tested law enforcement approach.

    At Lawfare, Ben Wittes defends the Bush administration’s record as oriented on a law enforcement approach. Koh argued that the Obama administration's approach "combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda" and Wittes countered that this description fit the Bush administration's approach. 

    Contrary to Wittes’ attempt to frame the Bush administration as focused on law enforcement, President Bush specifically rejected this approach and attacked candidate John Kerry for suggesting this path forward. In 2004, when Kerry emphasized his background as a prosecutor and urged that terrorism be considered through a law enforcement lens until it became a "nuisance," Bush attacked him vehemently. Kerry argued for an approach that was, "less of a military operation and far more of an intelligence-gathering law enforcement operation." Bush responded: "I disagree -- strongly disagree. … After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. With those attacks, the terrorists and their supporters declared war on the United States of America, and war is what they got." Wittes boasts of a more restrained argument from the Bush administration and he cites a 2006 speech by John Bellinger and a Bush administration brief filed in Boumediene (after losing hugely in RasulHamdi and Hamdan), of a more restrained vision of the war on terrorism. Bush did move away from the GWOT framing in his second term largely because he had been thwarted by the courts and Congress. What Koh invites us to ponder -  and Wittes fails to comprehend - is that you could have had a response to 9/11 that started with a deeply powerful law and order framework rather than heading down the rabbit hole by making outlandish claims of unilateral executive power that threatened constitutional order. By 2006, it was too little too late.

  • May 23, 2013

    by Jeremy Leaming

    President Obama has come a long way since he declared during his first term that in fighting the so-called war on terror we should safeguard our fundamental values “as vigilantly as we protect our security.”

    During his much touted counterterrorism speech at the National Defense University in Washington, Obama tried to return to that lofty rhetoric and even suggested an end would come to the indefinite war on terror. At other times, Obama sounded a bit too much like his predecessor in defending an aggressive approach by the CIA and military to hunt down and kill suspected terrorist overseas by way of drone strikes, even if those actions happen to take out a few American citizens and innocent civilians.  

    “America’s actions are legal,” Obama said. “We were attacked on 9/11. Within a week, Congress overwhelmingly authorized use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war – a war waged proportionally, in last resort, and in self-defense.”

    Regarding drone strikes, which the Department of Justice finally acknowledged has killed some American citizens, Obama offered an equally staunch defense.

    Obama said the “use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists – our preference is always to detain, interrogate, and prosecute them, America cannot strike wherever we choose – our actions are bound by consultations with partners, and respect for state sovereignty. America does not take strikes to punish individuals – we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. 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.”

    The New York Times reported that the president would supposedly start “shifting control” of the drone strikes from the CIA to the military. But deeper in The Times story, it’s noted that the president “may not explicitly announce the shift in drones from the Central Intelligence Agency in his speech, since the agency’s operations remain formally classified ….” In a piece for Salon, Alex Pareene notes that formal classification, saying, “Maybe the president’s next policy shift can involve the absurd and ridiculous over-classification of everything to do with national security and the actions of our intelligence agencies.”   

    Reporting for The Times in April, Scott Shane said since the start of the Obama administration, nearly 3,000 people have been killed by the drone strikes. As noted here, McClatchy Newspapers also provided an extensive study, based on U.S. intelligence reports revealed that the drone strikes killed thousands of people in Pakistan and Afghanistan and very few were top al Qaeda operatives.