Executive power

  • April 26, 2013

    by Jeremy Leaming

    Despite the rhetoric to move beyond a perpetual “war on drugs” the Obama administration remains mired in the tough-on-drugs mindset and its Justice Department seems befuddled by the states that have legalized small amounts of marijuana for recreational use.

    The Government Accountability Office (GAO) issued a report revealing that the administration’s goals set out in 2010 have largely not been met. The report noted that the Office of National Drug Control Policy and other federal agencies established “seven Strategy goals related to reducing illicit drug use and its consequences by 2015.” GAO continued, “As of March 2013,” its “analysis showed that of the five goals for which primary data on results were available, one shows progress and four show no progress.”

    But, as The Huffington Post’s Matt Sledge reports drug czar Gil Kerlikowske, head of the Office of National Drug Control Policy has just released another drug control plan that builds on the policies the GAO has said are not working. More troubling, Sledge notes that the drug office’s budget “still devotes less than half of it funds to treatment and prevention. The GAO found that prevention and treatment programs are ‘fragmented’ across 15 federal agencies.”

    In an April 24 post on its web site, the Office of National Drug Control Policy bemoans “illicit drug use,” claiming “drug-induced overdose deaths now surpass homicides and car crashes as the leading cause of injury or death in America.” It also declares “we cannot arrest or incarcerate our way out of the drug problem.”

    The language from the administration’s drug control office is softer than rhetoric about the “war on drugs,” which the Nixon administration launched with the enactment of the Controlled Substances Act (CSA) several decades ago. But the administration’s drug control office is not embracing drug legalization or even any changes to the CSA, such as removing marijuana from the list of drugs deemed as dangerous as say heroin.

    The muddled message from the Obama administration -- not helped by its Justice Department’s silence on how it will respond to Colorado and Washington, where officials are crafting measures to implement and regulate the recreational use of marijuana -- is preserving tough-on-drugs policies.

  • April 24, 2013

    by Jeremy Leaming

    A Senate panel sought to shed some light on America’s drone war, which according to various reports by human rights groups has killed thousands of people, many civilians, in Yemen, Pakistan, Afghanistan and possible other sites abroad. The drone program launched during the administration of George W. Bush and escalated by the Obama administration has been shrouded in secrecy, and laden with controversy.

    But increased coverage of civilian casualties of the drone strikes have helped spur more interest in the use of Reaper and Predator drones to hunt and kill suspected terrorists. Also a leaked “white paper” apparently summarizing a lengthier document produced by the Justice Department’s Office of Legal Counsel (OLC), caught widespread attention for its strained analysis to provide the president legal cover for approving the killing of U.S. citizens overseas who are suspected of having connections to al Qaeda or other terrorist groups.

    Before a Senate Judiciary subcommittee this week, Sen. Dick Durbin (D-Ill.) described the hearing, as the first-ever, to “address the use of drones in targeted killing” and said that the DOJ had provided him with the full OLC memos on the targeted killings of American citizens overseas. He noted, however, that he wished the administration would provide all legal documentation on targeted killings involving non-Americans as well. (Click on image for archived webcast of hearing.)

    At the outset, Durbin noted the president’s powers as Commander in Chief are constrained by the U.S. Constitution’s other principles, such as the protections of liberty, including due process. “At times in over the course of history our rules of law have been abused; when this occurs it challenges America’s moral authority and standing in the world.” Durbin also noted that civilian casualties related to the drone strikes can undermine the administration’s efforts to conduct an ongoing war against terrorism.

    Human rights groups and at least one of the committee’s witnesses suggest that the nation’s moral authority and standing have already been compromised by the drone war.

    Peter Bergen, with the New America Foundation, for example cited the significant escalation of the drone trikes and the public perception of those military actions in the places like Pakistan. “At this point, the number of estimated drone strikes from the Obama administration’s drone strikes in Pakistan – somewhere between 1,614 and 2,765 – is more than four times what it was during the Bush administration,” Bergen said in his written testimony before the committee.

    Addressing public perception of the drone war, Bergen later noted polling last year in 21 countries “found widespread global opposition to the CIA drone program. Muslim countries such as Egypt (89 percent) and Jordan (85 percent) expressed high levels of disapproval, while non-Muslim countries that are close American allies also registered significant displeasure with the program – Germany and France respectively polled at 59 and 63 percent disapproval.”

    Bergen, and another witness, Georgetown law school professor Rosa Brooks, however, highlighted that the number of civilians killed by drone strikes are hard to determine because of transparency. Brooks cited work by the New American Foundation, claiming that civilian casualties are “slightly lower” than those reported by human rights organizations.

  • April 16, 2013

    by Jeremy Leaming

    President Obama promised but failed to shutter the Guantánamo Bay military prison and has refused to launch an investigation into the use of torture at the prison and other unknown or “black sites.” But groups like Human Rights Watch and many others, including inmates at the prison, strive to highlight the injustices and atrocities of the prison, rendition and military commissions.

    It’s not an easy endeavor in a nation where polls suggest that many people are not terribly concerned about the rights of people who the American government has labeled terrorist suspects. In a piece for The New York Times op-ed page that garnered notice, Samir Najl al Hasan Moqbel, a prisoner at Guantánamo for more than 10 years, explained his reasons for going on a hunger strike. He’s never been charged with a crime, he has been left to languish in a dark hole, where prison officials brutally force-feed him. “The situation is desperate now,” he writes. “All of the detainees are suffering deeply. At least 40 people are on a hunger strike. People are fainting with exhaustion every day. I have vomited blood.”

    It has been widely documented that military detainees have been tortured at Guantánamo and other unknown or “black” sites overseas, with the knowledge of top administration officials in the administration of George W. Bush. In 2011, Human Rights Watch issued a report documenting evidence that top Bush administration officials, including the president, approved of torture. (Office of Legal Counsel memoranda were eventually made public reveling the lengths attorneys took to justify torture.) The Constitution Project, as reported by The New York Times’ Scott Shane, has released an exhaustive report, more like a book, that adds “considerable detail” to the treatment of military detainees. See the group’s Task Force on Detainee Treatment.

    Another report from Seton Hall School of Law provides more evidence that the Guantánamo military tribunals are a sham.

    In “Spying on Attorneys at Gitmo,” the Seton Hall School of Law’s Center for Policy & Research, details a system of “surveillance and recording” devices in “designated attorney-client meeting rooms at the military prison.”

    Law Professor Mark Denbeaux, director of the law school’s policy and research center, said government surveillance of conversations between attorneys and military detainees greatly undermines the already wobbly legitimacy of the military commissions.

  • 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 ….”