The rule of law is rapidly breaking down at the top levels of our government. As officers of the court, we have sworn to “support the Constitution,” which clearly implies an affirmative commitment on our part.
Take the administrations of George W. Bush and Barack Obama. The conservative American Bar Association sent three white papers to President Bush describing his continual unconstitutional policies. Then and now civil liberties groups and a few law professors, such as the stalwart David Cole of Georgetown University and Jonathan Turley of George Washington University, have distinguished themselves in calling out both presidents for such violations and the necessity for enforcing the rule of law.
Sadly, the bulk of our profession, as individuals and through their bar associations, has remained quietly on the sidelines. They have turned away from their role as “first-responders” to protect the Constitution from its official violators.
As a youngster in Hawaii, basketball player Barack Obama was nicknamed by his schoolboy chums as “Barry O’Bomber,” according to the Washington Post. Tuesday’s (May 29) New York Times published a massive page-one feature article by Jo Becker and Scott Shane, that demonstrated just how inadvertently prescient was this moniker. This was not an adversarial, leaked newspaper scoop. The article had all the signs of cooperation by the three dozen, interviewed current and former advisers to President Obama and his administration. The reporters wrote that a weekly role of the president is to personally select and order a “kill list” of suspected terrorists or militants via drone strikes or other means. The reporters wrote that this personal role of Obama’s is “without precedent in presidential history.” Adversaries are pulling him into more and more countries – Pakistan, Yemen, Somalia and other territories.
The drones have killed civilians, families with small children, and even allied soldiers in this undeclared war based on secret “facts” and grudges (getting even). These attacks are justified by secret legal memos claiming that the president, without any Congressional authorization, can without any limitations other that his say-so, target far and wide assassinations of any “suspected terrorist,” including American citizens.
The bombings by Mr. Obama, as secret prosecutor, judge, jury and executioner, trample proper constitutional authority, separation of powers, and checks and balances and constitute repeated impeachable offenses. That is, if a pathetic Congress ever decided to uphold its constitutional responsibility, including and beyond Article I, section 8’s war-declaring powers.
As if lawyers needed any reminding, the Constitution is the foundation of our legal system and is based on declared, open boundaries of permissible government actions. That is what a government of law, not of men, means. Further our system is clearly demarked by independent review of executive branch decisions – by our courts and Congress.
What happens if Congress becomes, in constitutional lawyer Bruce Fein’s words, “an ink blot,” and the courts beg off with their wholesale dismissals of Constitutional matters based on claims and issue involves a “political question” or that parties have “no-standing-to-sue.” What happens is what is happening. The situation worsens every year, deepening dictatorial secretive decisions by the White House, and not just regarding foreign and military policies.
The value of The New York Times article is that it added ascribed commentary on what was reported. Here is a sample:
– The U.S. Ambassador to Pakistan, Cameron P. Munter, quoted by a colleague as complaining about the CIA’s strikes driving American policy commenting that he: “didn’t realize his main job was to kill people.” Imagine what the sidelined Foreign Service is thinking about greater longer-range risks to our national security.
– Dennis Blair, former Director of National Intelligence, calls the strike campaign “dangerously seductive.” He said that Obama’s obsession with targeted killings is “the politically advantageous thing to do — low cost, no US casualties, gives the appearance of toughness. It plays well domestically, and it is unpopular only in other countries. Any damage it does to the national interest only shows up over the long term.” Blair, a retired admiral, has often noted that intense focus on strikes sidelines any long-term strategy against al-Qaeda which spreads wider with each drone that vaporizes civilians.
– Former CIA director Michael Hayden decries the secrecy: “This program rests on the personal legitimacy of the president and that’s not sustainable,” he told the Times. “Democracies do not make war on the basis of legal memos locked in a D.O.J. [Department of Justice] safe.”
Consider this: an allegedly liberal former constitutional law lecturer is being cautioned about blowback, the erosion of democracy and the national security by former heads of super-secret spy agencies!
Secrecy-driven violence in government breeds fear and surrender of conscience. When Mr. Obama was campaigning for president in 2007, he was reviled by Hillary Clinton, Joseph Biden Jr. and Mitt Romney – then presidential candidates – for declaring that even if Pakistan leaders objected, he would go after terrorist bases in Pakistan. Romney said he had “become Dr. Strangelove,” according to the Times. Today all three of candidate Obama’s critics have decided to go along with egregious violations of our Constitution.
The Times made the telling point that Obama’s orders now “can target suspects in Yemen whose names they do not know.” Such is the drift to one-man rule, consuming so much of his time in this way at the expense of addressing hundreds of thousands of preventable fatalities yearly here in the U.S. from occupational disease, environmental pollution, hospital infections and other documented dangerous conditions.
Based on deep reporting, Becker and Shane allowed that “both Pakistan and Yemen are arguably less stable and more hostile to the United States than when Obama became president.”
In a world of lawlessness, force will beget force, which is what the CIA means by “blowback.” Our country has the most to lose when we abandon the rule of law and embrace lawless violence that is banking future revenge throughout the world.
The people in the countries we target know what we must remember. We are their occupiers, their invaders, the powerful supporters for decades of their own brutal tyrants. We’re in their backyard, which more than any other impetus spawned al-Qaeda in the first place.
So lawyers of America, apart from a few stalwarts among you, what is your breaking point? When will you uphold your oath of office and work to restore constitutional authorities and boundaries?
Someday, people will ask – where were the lawyers?