Executive power

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.”

by Jeremy Leaming

Sen. Rand Paul, (R-K.Y.) may be a strident, sometimes over-the-top Tea Party supporter and fervent antigovernment advocate, but his filibuster of President Obama’s pick to head the C.I.A. was principled. He did so by actually taking to the Senate floor to explain, albeit in very long fashion, his opposition to the administration’s nominee C.I.A. John Brennan, who was confirmed today for the position.

Paul’s action was far different than the Republican obstructionists’ baseless and practically silent filibuster of Caitlin Halligan to a seat on the U.S. Court of Appeals for the District of Columbia Circuit. As Greg Sargent writes in The Plum Line, “Paul’s filibuster was born out of concern about an actual issue – objections to Obama’s approach to drone warfare that are shared on both sides of the aisle.” [See below for more commentary on the Obama administration’s secretive use of drones]

Halligan, however, was blocked by senators who on the whole probably spoke less than two hours about Halligan. And their objections were incredibly lame. She’s received the ABA’s highest ranking for qualification and exceedingly strong support in the legal community, both conservatives and progressives.

Republican senators have been obstructing the judicial nominations process ever since Obama first took office. The president was not able to appoint a judge to the D.C. Circuit during his first term because of Republicans’ obstinacy. There is simply a great desire among the Senate Republicans to keep as many vacancies open, especially on the powerful D.C. Circuit, for as long as possible. These obstructionists are beholden to a base that coddles the superrich and riles up a shrinking group, albeit loud and still influential, obsessed with keeping the courts packed with right-wing ideologues. Too many of those right-wing jurists help support state efforts to abolish abortion and make life much more difficult for those in the LGBT community and undocumented persons.

The sham filibuster, which is the preferred tool of the Senate’s obstructionists, has become the norm. It has been used to halt consideration of policy such as efforts to confront climate change or address immigration reform; but it has most often been used to delay or kill executive branch or judicial branch nominations. Indeed, thanks to the sham filibuster, the Republicans have helped create more than 80 vacancies on the federal bench. In fact vacancies have hovered at 80 or above for much of Obama’s term. The Senate Republicans’ assault on the federal bench, serves their political purposes, but harms the judiciary and Americans who rely on the courts to uphold constitutional rights and seek redress of grievances. A federal bench burdened with fewer judges and larger caseloads is no way for the judiciary to function.