Executive Privilege

by , July 01, 2010

The removal of General Stanley McChrystal from command provided President Barack Obama with the perfect opportunity to review the entire Afghan war strategy and declare it a failure.  That he did not do so means that the war now belongs fully to the president and he, in typical Washington fashion, will insist on something that he can describe as "mission accomplished."  The fighting will continue until Washington runs out of money and soldiers and is forced to craft together a phony peace settlement before leaving with its tail between its legs.  The whole world knows that United States foreign policy has become little more than a pathetic joke, a fact that is also becoming increasingly clear to many Americans who do not live inside the Washington beltway bubble.

Even if the long war finally ends some day, there will be no revival of the liberties enshrined in the United States constitution and the protections afforded by the rule of law.  This will be the most enduring legacy of George W. Bush and Barack Obama.  It hasn’t mattered which party has been in power, the objective of both has been to establish an all powerful executive that can operate without any constitutional restraints.  Since 2001, the creation of just such a central authority, fueled by an exaggerated fear of terrorism, has led to the dismantling of many of the freedoms that Americans enjoyed for over two hundred years.

President Barack Obama promised more openness and accountability in government but he has not delivered.  He has failed to abolish or significantly amend the Patriot Acts and the Military Commissions Act, which together make it possible to detain anyone indefinitely based only on suspicion. Obama’s Justice Department has defended the government’s use of the state secrets privilege to avoid having to deal with pesky lawsuits from civil libertarians and whistle blowers.  The Obama White House is, as a result, just as secretive as that of his predecessor.  And all indications are that it will only get worse as the Supreme Court slides to the right on the issue of executive authority. 

New Supreme Court nominee Elena Kagan has described retired Israeli Judge Aharon Barak as her "judicial hero."  Barak is sometimes described as a liberal, but a review of his decisions reveals that he has always sided with the Israeli government in cases where arbitrary behavior by the state was being challenged.  He also established the legal guidelines that enabled torture by the Israeli authorities.  Kagan herself is of a like mind, favoring government prerogatives, executive privilege and secrecy even when there is no clear legal reason to deny access to information.  In one recent case Kagan successfully argued that the Supreme Court should overturn a New York appeals court ruling to permit the release of photographs of foreign prisoners being abused by their American captors. The American Civil Liberties Union argued for the release of the photos while Obama and the Pentagon against. Kagan, in her role as solicitor general, argued that US military personnel would be endangered if the photos were to become public.

In another case presented by Kagan on behalf of the Obama Administration, her soon-to-be colleagues on the court agreed with her argument and ruled that the government has a right to criminalize any and all contact with organizations that are defined as terrorists, even if that contact is undertaken with the intent to convince the groups to abandon the very activities that the US government condemns.  With that ruling, humanitarian assistance provided to civilians in an area controlled by a group that the White House considers to be terrorist-connected would become the indictable offense of terrorism support.  The explanation given by Chief Justice John Roberts was hardly illuminating.  He said those who oppose the law "simply disagree with the considered judgment of Congress and the executive that providing material support to a designated foreign terrorist organization — even seemingly benign support — bolsters the terrorist activities of that organization."  In other words, the right of Americans to associate freely, guaranteed by the first amendment, can be limited by Congress and the White House if they disapprove of or criminalize the group you are associating with.  The Supreme Court is curiously siding with the executive and legislature and denying that it has any right to uphold the constitution, which becomes, by that standard, truly just a piece of paper.  The government can call anything a security threat and can proceed without restraint. Libertarians were dismayed by the ruling, but the Israel Lobby’s Anti Defamation League called the ruling "right on target."

Kagan also supports the right of the United States to detain indefinitely anyone anywhere in the world if the White House determines that there is some actual or potential threat.  This is an expansion of the "whole world is a battle field" thinking that drove the zealots in the Bush Administration.  With Kagan on the court there will be virtually no resistance to any Administration action as long as it can be plausibly (or even implausibly) labeled as terrorism connected.

The unitary battlefield thinking inevitably spawned the kill them when you find them solution for dealing with the problem.  The United States is the only country in the world that has declared that it has the right – and the desire – to murder its own citizens overseas when there is suspicion that they are involved in any way with what it calls a terrorist group.  It also appears to believe that collateral damage is not an issue, so if a suspect is traveling in a car with his family, too bad for the family.  Suspicion is the only relevant standard for being placed on the death list, and the victim of the targeted assassination does not have to be in flagrante involved in an actual terrorist act.  The only due process in the killing would be rendered by a Washington bureaucrat presumably being advised by a Justice Department lawyer, both of whom would be working for the White House and presumably inclined to be forward leaning on taking out another bad guy.  Based on an interview with White House terrorism adviser John Brennan, Glenn Greenwald believes there might already be dozens of names of American citizens on the list.

And the assault on the constitution goes on from there, with Congress joining in with some enthusiasm.  Senator Joe Lieberman of Connecticut has introduced legislation that would strip US citizens of their citizenship if there is suspicion of their being involved in terrorist related activity.  Again, suspicion is the key word.

Lieberman is also the sponsor of another bill that will enable the United States unilaterally and without any due process to turn off the internet if there is any security threat.  The bill, grandiloquently named the Protecting Cyberspace as a National Asset Act, has already cleared the Homeland Security committee that Lieberman chairs and is now on its way to the full Senate for approval.  The nature of the security threat would, of course, be defined by the US government itself.  Some who actually know how the internet operates believe that it would be impossible to shut it down in the United States where there are multiple servers and redundancies inbuilt into the system, but the government’s intent is clear: control information and you control what the public thinks.  If the public is kept deliberately in the dark, you can quite literally do anything you want to do.  Lieberman, of course, has a particular passion for Israel and it is reasonable to assume that his ultimate intention might be to use the cyberwarfare justification combined with anti-terror legislation to shut down internet sites that provide news and commentary critical of the Benjamin Netanyahu government. 

Americans who care about their country and its constitution should be mortified by recent developments, but, apart from a vocal minority, most people appear to accept that the government is a benign force that will do what is right.  Nothing could be farther from the truth.  The past nine years has seen a sustained assault on the rights guaranteed in the United States bill of rights, an assault in many cases carried out by those very individuals who have sworn an oath to defend the constitution against all enemies domestic and foreign.  History teaches that liberties lost can never be regained.  We are living in an age where the government can conceal what is doing, where it can imprison anyone indefinitely or strip people of citizenship, where it can kill citizens on suspicion, and where it is increasingly seeking to control the public’s access to independent sources of information.  This is a far cry from the Republic that the Founding Fathers envisioned, a monstrous modern corporatist state using all of its resources to maintain a constant state of war overseas and fear at home.

Read more by Philip Giraldi