The Expansion Of Presidential Power

In the United States, many thought Barack Obama’s election would be the moment the rule of law reasserted itself in the fight against jihadi terrorism.

After all, that’s what he promised – ending the use of torture and extreme rendition, revising the Patriot Act, closing down Guantanamo Bay detention camp, eliminating warrantless wiretaps, and restoring the right of prisoners to challenge their detention.

So the debate whether the Obama administration has the legal authority to assassinate an American citizen without any due process is pretty unedifying.

The citizen in question is Anwar al-Awlaki, a radical Muslim cleric. He’s probably holed up in Yemen. In April, the administration authorised his assassination.

Now his father is suing the government to prevent the government doing so. In response, the administration asked the court to dismiss the lawsuit because it involves state secrets.

There’s no doubt al-Awlaki is a bad guy. He’s reportedly called for American Muslims to wage violent jihad against the US. His sermons have been attended by an array of accused and convicted terrorists. He’s apparently the inspiration for the Times Square bomber and the Christmas Day bomber. The US government now claims he’s gone from encouraging terrorist attacks to actively participating in them.

American governments have long had the power to assassinate those waging war against the United States.

Yet assassinating a US citizen goes well beyond anything previous administrations have ever been able to do. A senior Bush legal official told the New York Times he couldn’t recall any similar case.

And, Barack Obama – or, at least, Barack Obama’s lawyers – believe the president has an absolute right to do so without limitation and without scrutiny.

As the legal commentator Glenn Greenwald wrote, the Obama administration seems to believe that “not only does the president have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are ‘state secrets,’ and thus no court may adjudicate their legality.”

One could make the case al-Awlaki has so abrogated his American citizenship he is effectively a foreigner, and that his threat to the US is so substantial they have no choice but to assassinate him. But that’s a case they should make to a court. Instead, the administration believes the government shouldn’t have to justify targeting the cleric.

This argument proposes the US president be given absolutely unlimited powers.

No matter how hawkish you are on the war on terror, that’s a bad idea.

In her 2008 book, The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals, Jane Mayer laid out how the administration of George W. Bush fumbled its way into its security framework.

Guantanamo Bay, the renditions, the blurring of legal and illegal torture, and the augmenting of the president’s war powers were a result of panic after September 11 attacks and an escalating security machismo within the White House.

The urgency meant it took less than 12 months for these policies to be fixed in place.

That’s not an excuse for the Bush administration blundering – and there was a lot of blundering while the administration tried to reform criminal processes to fight a war against terrorists. And it’s no excuse for their utter disregard of due process, civil liberties, and individual rights. But it is an explanation.

By contrast, it is nearly incomprehensible that, a decade after the September 11 attacks, those powers are still expanding rather than contracting.

Certainly, terrorism remains a national security problem in the US and around the world. Recent warnings about threats in Europe and India remind us of that. But the direct political pressure over terror has been relieved – partially due to the global financial crisis, which displaced public fear of the risk of attack with a much more real fear of unemployment.

And many of the tactics deployed after 2001 have been, in retrospect, dismal failures.

The effort to prosecute accused terrorists through military commissions rather than the civilian legal system has been decidedly uninspiring: those who could have been jailed for life had they faced the full gamut of civilian charges have received peculiarly light sentences.

The recent expansion of presidential power is made worse by the fact that Obama specifically campaigned against legal abuses in the conduct of the war on terror.

This brazenness is unlikely to hurt the president. Many in the American left have been reluctant – even embarrassed – to admit Obama has doubled down on some of the most reviled policies of the Bush administration. Those who do point out a Palin administration would be far worse.

And conservatives are more eager to criticise Obama for being too soft on terrorism than being unprecedentedly bold.

In his new book Obama’s Wars, Bob Woodward quotes the president claiming the US could “absorb” another terrorist attack. This has been described as a gaffe. And, from a political perspective, it is. But it’s also an uncommonly honest reflection of the nature of the terrorist threat.

If only that moderation was translated into policy.