Executive power

  • April 10, 2013

    by Jeremy Leaming

    Though then-presidential candidate Barack Obama often blasted President George W. Bush’s expansion of presidential powers to fight terrorism, once in the White House he quickly embraced those powers which have only swelled during his tenure.

    Earlier this year, Bill Moyers, during a segment, “The Legal and Ethical Case Against Drones,” highlighted a comment President Obama gave early in his first term.

    “Our actions in defense of our liberty will be just as our costs, and that ‘We the People,’ will uphold our fundamental values as vigilantly as we protect our security,” Obama said. “Once again, America’s moral example must be the bedrock and the beacon of our global leadership.”

    The president’s rhetoric, however, does not mesh with what we are discovering about the ramped up use of Reaper and Predator drones to target suspected terrorists. Reporting by Mark Mazzetti for The New York Times provides insight into the “origins of a covert drone war that began under the Bush administration, was embraced and expanded by President Obama, and is now the subject of fierce debate.”

    Part of the debate includes whether the Obama administration has tossed aside some of the fundamental values the nation cherishes, such as due process and being a defender of human rights globally.

    A “white paper,” leaked earlier this year and made public by NBC is apparently a summary of a lengthier document prepared by a few attorneys in the Department of Justice’s Office of Legal Counsel (OLC). The white paper makes the argument that a high-ranking government official, like the president, can order the killing of a U.S. citizen integral to or associated with al Qaeda abroad if the person poses an “imminent threat of violent attack” against America, the person is unlikely to be captured and that the killing operation would be conducted in accordance with laws governing war.” The OLC white paper also asserts that no court oversight of the administration’s targeted killing regime is required.

    The Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights chaired by Sen. Dick Durbin (D-Ill.) will conduct a hearing on April 16* to explore the “constitutional and counterterrorism implications of targeted killings.” According to a statement announcing the hearing, senators will “also explore proposals to increase transparency regarding U.S. drone policy and establish a legal architecture to regulate drone strikes.”

    The administration has endeavored to shroud its policy on drone warfare in secrecy, but release of the OLC white paper and the mounting numbers of civilians killed in drone strikes are making it more difficult to keep the policy under wraps. The ACLU has lodged a Freedom of Information Act lawsuit to force the administration to release the entire memo, for instance.  

    The escalation of drone warfare is likely also not helping Obama’s desire for America to remain a beacon of “global leadership.” As The Times’ Scott Shane reports, since taking office the CIA and military “have killed about 3,000 people in counterterrorist strikes in Pakistan, Yemen and Somalia, mostly using drones.”

  • March 13, 2013

    by Jeremy Leaming

    There was an opening early in the 113th Congress to make life a bit tougher on the Senate’s band of obstructionists – through reform of the filibuster. But the obstructionists’ ringleader, Sen. Minority Leader Mitch McConnell (R-K.Y.), deftly avoided real reform by saying the Obama administration’s nominations to the lower federal district courts would be moved along more quickly.

    But so-called reform has quickly proven rather lame. The president’s nominations to federal appeals courts as well as important executive branch positions remain in the cross-hairs of obstructionists who require a 60-vote majority before any action can be taken on those nominations or for that matter legislation.

    On March 6 the Senate killed the president’s nomination of Caitlin Halligan for as seat on the powerful U.S. Court of Appeals for the District of Columbia. As Matt Vister noted earlier this week in an extensive piece for the Boston Globe the D.C. appeals court “has only seven out of 11 judges, the worst vacancy in its history and higher than any other federal circuit court nationwide. Obama has never been able to get a nominee on the court, symbolizing the Senate’s failure to approve nominations to dozens of courts nationwide.”

    And the Senate’s obstructionists are again taking aim at the Consumer Financial Protection Bureau, which was created in part to prevent the shady practices employed by the financial industry, which helped usher in the Great Recession. Right-wing senators beholden to the nation’s superwealthy are demanding changes to the law that created the bureau or they will likely again filibuster Obama’s selection to head the bureau, former Ohio Attorney General Richard Cordray. Cordray was appointed to head the bureau during a recess of Congress. But an opinion from the D.C. Circuit – the court Obama has been blocked from appointing any judges – ruled earlier this year that the president’s three recess appoints to a hobbled National Labor Relations Board were unconstitutional. The Obama administration has appealed that ruling to the U.S. Supreme Court.

    Because Cordray’s appointment was made during a recess, it will expire and he’ll still need to be confirmed. But Republican obstructionists are threatening to block Cordray unless the financial reform law is weakened.

    Sen. Elizabeth Warren (D-Mass.) during a Senate Banking Committee yesterday blasted the obstructionism, saying, “I think that the delay in getting him confirmed is bad for consumers, it’s bad for small banks, it’s bad for credit unions, it’s bad for anyone trying to offer an honest product in an honest market. The American people deserve a Congress that worries less about helping big banks and more about helping regular people who have been cheated on mortgages, on credit cards, on student loans, on credit reports.” The Philadelphia Inquirer’s Jeff Gelles has more on Warren’s comments and a link to video of the hearing.)

    Today TPM’s Brian Beutler reports that Obama during a meeting with Democrats this week “expressed his frustration with Republican slow-walking and filibustering of key nominees, and urged them to address the issue ….”

     

  • March 7, 2013

    by Jeremy Leaming

    Sen. Rand Paul, (R-K.Y.) may be a strident, sometimes over-the-top Tea Party supporter and fervent antigovernment advocate, but his filibuster of President Obama’s pick to head the C.I.A. was principled. He did so by actually taking to the Senate floor to explain, albeit in very long fashion, his opposition to the administration’s nominee C.I.A. John Brennan, who was confirmed today for the position.

    Paul’s action was far different than the Republican obstructionists’ baseless and practically silent filibuster of Caitlin Halligan to a seat on the U.S. Court of Appeals for the District of Columbia Circuit. As Greg Sargent writes in The Plum Line, “Paul’s filibuster was born out of concern about an actual issue – objections to Obama’s approach to drone warfare that are shared on both sides of the aisle.” [See below for more commentary on the Obama administration’s secretive use of drones]

    Halligan, however, was blocked by senators who on the whole probably spoke less than two hours about Halligan. And their objections were incredibly lame. She’s received the ABA’s highest ranking for qualification and exceedingly strong support in the legal community, both conservatives and progressives.

    Republican senators have been obstructing the judicial nominations process ever since Obama first took office. The president was not able to appoint a judge to the D.C. Circuit during his first term because of Republicans’ obstinacy. There is simply a great desire among the Senate Republicans to keep as many vacancies open, especially on the powerful D.C. Circuit, for as long as possible. These obstructionists are beholden to a base that coddles the superrich and riles up a shrinking group, albeit loud and still influential, obsessed with keeping the courts packed with right-wing ideologues. Too many of those right-wing jurists help support state efforts to abolish abortion and make life much more difficult for those in the LGBT community and undocumented persons.

    The sham filibuster, which is the preferred tool of the Senate’s obstructionists, has become the norm. It has been used to halt consideration of policy such as efforts to confront climate change or address immigration reform; but it has most often been used to delay or kill executive branch or judicial branch nominations. Indeed, thanks to the sham filibuster, the Republicans have helped create more than 80 vacancies on the federal bench. In fact vacancies have hovered at 80 or above for much of Obama’s term. The Senate Republicans’ assault on the federal bench, serves their political purposes, but harms the judiciary and Americans who rely on the courts to uphold constitutional rights and seek redress of grievances. A federal bench burdened with fewer judges and larger caseloads is no way for the judiciary to function.

     

  • February 19, 2013

    by Jeremy Leaming

    Lawmakers, on national and state fronts, seem a bit more interested in knowing more about the Obama administration’s use of drones in targeted killings abroad and possibly some regulation of the counterterrorism measure. After the weak “white paper,” apparently a brief summary of several documents created by lawyers in the Office of Legal Counsel was made public by NBC, lawmakers and a few more journalists have discovered greater interest in the administration’s use of drones to take out suspected terrorists overseas.

    But reporting for Salon, Joan Walsh points to some polling that suggests that the administration’s expanding and secretive use of drones is getting a pass from and even winning over some liberals, who were not shy about blasting the Bush administration’s egregious legal reasoning used to justify torture of military detainees.

    A poll of 1,000 voters from last summer, conducted by Brown University political scientist Michael Tesler, “found significantly more support for targeted killing of suspected terrorists among white ‘racial liberals’ (i.e., those liberal on issues of race) and African Americans when they were told that Obama supported such a policy than when they were not told it was the president’s policy.”

    Walsh’s piece explains Tesler’s work, including some caveats, but concludes the polling suggests that respondents “reaction may be informed by their support for the president, which is at least a little bit troubling. The U.S. is moving into uncharged political, military and moral territory with the use of drones, as well as expanded claims of presidential powers on targeted killings, on what seems to be a global battlefield in time of endless war.”

    The support for counterterrorism policy solely or mostly on favorability of the president is highly disconcerting. Especially since the legal reasoning we’ve seen so far looks a lot like a just-trust-me policy. Indeed from a Dish post a couple weeks back, Andrew Sullivan blasted the wobbly white paper for its “corruption of the English language” and for coming “perilously close to the equivalent of ‘Because I said so.’ And the core message is trust me.’”

    Rolling Stone’s Matt Taibbi notes the “histornics and gymnastics some people have resorted to in their efforts to defend this infamous drone program. Extralegal murder is not an easy thing to manufacture consent around, and the signs of strain in the press have been pretty clear all around.”

     

  • February 11, 2013

    by Jeremy Leaming

    Despite attorneys in the Department of Justice’s Office of Legal Counsel who appear to have produced a lengthy justification for targeted killings that skewers the English language to wend its around constitutional principles such as due process before the government can deprive a person of liberty, President Obama has nonetheless taken solid action to counter the right’s take on the Constitution as a document that limits government’s ability to take collective action to protect and advance the nation’s welfare.

    In a piece for The New Republic, Simon Lazarus, senior counsel to the Constitutional Accountability Center, says it’s about time – likely long overdue -- that progressives provide a compelling alternative to the right’s simplistic, but effective rhetoric of a Constitution that is all about individual rights and a weak central government.

    Quickly after the president provided some staunchly liberal rhetoric in his Second Inaugural address, Republican lawmakers, such as Sens. Mitch McConnell (R-K.Y.) and Chuck Grassley (R-Iowa) brayed that the president was ushering in or attempting to an age of radical liberalism. Grassley, as noted here, also groused that the president had turned the Second Amendment on its head by arguing that new measures aimed at curbing gun violence were no threat to the individual right to bear arms.

    The president’s rhetoric on the Constitution, Lazarus writes, “echoes that of the Reconstruction Congresses which enacted the Thirteenth, Fourteenth and Fifteenth Amendments. In line with then-existing Supreme Court precedent, they believed Congress empowered to prevent interference with the exercise of individual rights created by constitutional prohibitions on government. Specifically, they held the federal government responsible for preventing private violence and intimidation designed to deter former slaves from voting and enjoying other constitutionally prescribed liberties. And they wrote into the amendments express authority for Congress to ‘enforce’ that responsibility.”