Obama Debates the War on Terror With Himself

Jacob Sullum

5/29/2013 12:01:00 AM - Jacob Sullum

Last week, a guy named Barack Obama gave a speech in which he expressed appropriate concern about the abuse of government power in the name of fighting terrorism. Too bad he's not in a position to do anything about it.

Obama, who used to teach constitutional law at the University of Chicago, quoted James Madison's warning that "no nation could preserve its freedom in the midst of continual warfare." Yet by declaring war against al-Qaida and its shifting and proliferating allies and offshoots -- groups that will not disappear or surrender anytime in the foreseeable future -- he has reinforced the rationale for a never-ending military struggle that sacrifices civil liberties on the altar of national security.

Regarding one especially controversial aspect of that struggle, the use of unmanned aircraft to execute people the president identifies as terrorists, Obama incoherently argues that such assassinations are legitimate acts of war and that they are governed by due process (at least when the targets are U.S. citizens). To make matters even more confusing, he says the requirements of due process can be met through secret deliberations within the executive branch.

Obama nevertheless raised the possibility of establishing "a special court to evaluate and authorize lethal action," which he said "has the benefit of bringing a third branch of government into the process but raises serious constitutional issues about presidential and judicial authority." In other words, the advantage of consulting a court is that it would subject Obama's death warrants to independent review; the disadvantage is that it would subject Obama's death warrants to independent review.

News outlets such as NBC, Time and The New York Times reported that Obama had announced stricter criteria for targeted killings. But his assurance that "we act against terrorists who pose a continuing and imminent threat to the American people" was consistent with the secret Justice Department white paper that NBC published last February, which defines "imminent threat" so loosely that it loses all force as an independent requirement for adding someone to the president's kill list.

In addition to worrying about his assassination program, which he said could "lead a president and his team to view drone strikes as a cure-all for terrorism" and "end up shielding our government from the public scrutiny that a troop deployment invites," Obama worried about his practice of indefinitely detaining people without charge. He called the military prison at Guantanamo Bay "a symbol around the world for an America that flouts the rule of law."

While it's true that Republican legislators have interfered with Obama's attempt to close Guantanamo, he has considerable leeway to reduce the prison's population without congressional approval, as he demonstrated by lifting a self-imposed moratorium on freeing Yemenis, who account for two-thirds of the 86 low-level detainees cleared for release. And even without Republican obstruction, Obama plans to keep some Guantanamo detainees in the legal limbo he decries as an affront to the rule of law -- just at a different location.

Similarly, the same president who has used the "state secrets" doctrine to block lawsuits by victims of torture and targets of warrantless surveillance also called for "careful constraints on the tools the government uses to protect sensitive information, such as the state secrets doctrine." Obama doubled down on the hypocrisy by condemning torture and calling for "privacy protections" (even while advocating an expansion of the government's snooping abilities).

What else about Obama's national security policies bothers Obama? "I'm troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable," he said, presumably referring to the FBI's use of administrative subpoenas to demand two months of Associated Press telephone records after the organization published a story about a foiled terrorist raid. Maybe he also had in mind the Justice Department's consideration of criminal charges against journalists who obtain classified information.

In short, Obama raised many valid points about executive power run amuck. If only he had the president's ear.