January 08, 2012 “Reason” — Back in 2007, when Barack Obama was running for president, a mildly surprising bit of news emerged: He and Dick Cheney were eighth cousins. Today, though, it appears that report was wrong. Judging from Obama’s record in office, the two are practically brothers.
As a candidate, Obama criticized the last administration for holding Americans as enemy combatants without trial. He faulted it for wiretapping citizens without a warrant. He rejected the Republican claim that the president has the “inherent power” to go to war without congressional consent. He depicted George W. Bush and his vice president as a menace to constitutional limits and personal freedom.
But look at him now. Last week, Obama signed a bill letting him detain U.S. citizens in military custody without convicting them of anything — not for a month or a year, but potentially forever.
Obama pledges he will never use that power to hold an American. But Sen. Carl Levin, D-Mich., said the bill originally applied only to non-citizens. Citizens were included, he said, at the request of the White House. Even if Obama doesn’t plan to use the power, it will be sitting on the shelf for Mitt Romney or Rick Santorum.
Those who voted for Obama in 2008 expected something different. “The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional,” he told The Boston Globe.
His reversal brings to mind not only Cheney but another Republican. “Obama has eclipsed Nixon in the establishment of an imperial presidency,” George Washington University law professor Jonathan Turley told me. And Turley voted for Obama.
There is plenty of evidence for that conclusion. Last year, Obama ordered a drone strike in Yemen to kill radical Muslim Anwar al-Awlaki — a U.S. citizen. The administration claimed it had the legal authority to obliterate him, as well as evidence that Awlaki was engaged in active hostilities. But you’ll have to take Obama’s word, because he refused to make all this information public.
The targeted killing was justified by a secret legal memo that, The New York Times reported, “provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war.”
And the evidence that Awlaki was plotting terrorist attacks, not merely spouting anti-American propaganda? Sorry, also secret. It’s possible to make a case that he posed a clear threat to American lives and that the missile was the only feasible way to avert it. But Obama, the vaunted champion of openness, saw no need to bother.
In some ways, though, the president has been perfectly transparent. Note his transparent disregard for both the Constitution and federal law in launching a military attack against Libya.
The Constitution explicitly places the power to authorize war with Congress, not the president. But Obama refused to ask Congress to grant its approval beforehand — something even George W. Bush did as he prepared to invade Iraq.
Obama also defied the War Powers Resolution, which requires the president to get congressional authorization within 60 days or withdraw. His preposterous position was that the law didn’t apply because we were not engaged in “hostilities.”
All this was particularly novel coming from someone who, as a candidate, suggested that emperors are for other countries. “The president,” he insisted, “does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
Libya, however, had neither attacked us nor posed any discernible threat. President Obama exercised a presidential power that Candidate Obama said he doesn’t have.
The candidate also denounced the Bush-Cheney administration for unauthorized surveillance of Americans in the United States. But when an Islamic charity sued after being illegally wiretapped in 2004, Obama’s Justice Department took the side of the wiretappers.
It argued in court that the lawsuit should be dismissed because it involved state secrets and refused to turn over evidence that the presiding judge demanded. He ruled that the wiretaps violated federal law and accused the administration of advocating “unfettered executive branch discretion” that invites “governmental abuse and overreaching.”
The judge is only one of those who have vigorously faulted Obama’s handling of executive power and civil liberties. If the president needs to hear a more sympathetic view, he might call Dick Cheney.
By Steve Chapman