Obama Looking for Structures to Ensure He Abides by Rule of Law


Noah Shachtman does a good job of fact checking Obama’s claims about his drone program in a recent interview with Jessica Yellin.

But I’d like to push further on his comments about Obama’s claims to give Anwar al-Awlaki and Samir Khan (to say nothing of Abdulrahman al-Awlaki) due process by pointing to the way he ends this bit:

Our most powerful tool over the long term to reduce the terrorist threat is to live up to our values and to be able to shape public opinion not just here but around the world that senseless violence is not a way to resolve political differences. And so it’s very important for the President and for the entire culture of our national security team to continually ask tough questions about, are we doing the right thing? Are we abiding by rule of law? Are we abiding by due process? And then set up structures and institutional checks so that you avoid any kind of slippery slope into a place where we’re not being true to who we are.

Having started by saying that drones are just a tool, he ends up by saying that we will vanquish terrorism by upholding our values–rule of law and due process.

And then the Constitution Professor President describes “set[ting] up structures and institutional checks” to make sure that we deliver rule of law and due process.

This, from the guy whose Administration refused to litigate a suit from Anwar al-Awlaki’s father to make sure it was upholding the standards Obama claimed in this interview in Awlaki’s case.

This, from the guy whose Administration has claimed state secrets to make sure no court can review the claims of people who have been rendered or tortured or illegally wiretapped.

This, from the guy who wouldn’t do the politically difficult things to have Khalid Sheikh Mohammed tried–and surely, convicted–before a civilian court in NYC.

He’s looking for structures and institutional checks to make sure we don’t go down that slippery slope where we forget rule of law. And yet his Administration has repeatedly avoided the one mandated by the Constitution: courts.

Which, according to his own logic, means he’s not using the tool that would best work to keep us safe from terrorism.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

19 replies
  1. Brindle says:

    Excellent deconstruct of Obama’s view and practice that due process and accountability are to be avoided by the creation of “structures”—Orwell meets Catch-22.

  2. JThomason says:

    It’s all part of the break away of the executive branch. The logic seems to look something like this: judicial due process does not fit our needs, so we will internalize the judical functions and incorporate them in executive processes. It sounds good but represents a fundamental disruption of the balance of powers envisioned conceptually in the checks and balances embodied in the Constitution.

    In all fairness the emergence of increased global engagement creates stress on the balances that were conceived and incorporated in the Constitution. The question as I see it is if our global engagement is trully motivated by a Constitutional idealism why is due process not paid forward. By bringing tribal justifications and irrational standards to the frontier the outcome is probably more likely a slippery slope than a long hard trudge toward the enlightened self-interestand maybe more importantly self-restraint due process involves.

  3. Snarki, child of Loki says:

    “See, there’s this really long form, three pages minimum, with lots of checkboxes. And you have to check every single one of the boxes to schedule a drone strike.

    I can’t show you any of the checkboxes, because they’re classified. So don’t bother asking.

    But we have a STRUCTURE. You have to fill out the FORM.

    Not like Bush; he’d just haul out Saddams old pistol and go “Kpow! Kpow!” and the CIA would take that as a go-ahead.”

  4. harpie says:

    Where does this gobbledygook come from:
    Obama:

    What is absolutely true is that my first job, my most sacred duty as President and Commander in Chief is to keep the American people safe.

    I can’t find it anywhere in this:

    I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

  5. What Constitution? says:

    The “Structure” he’s referring to would be the one that allows President Barack Obama (singularly) to do what he thinks best because he’s a Good Man. That structure, of necessity, would not apply to some other — say, Republican — president (should there ever be one), and so the actions of some other future president I’m sure would be held to a different standard. Presumably one acceptable to Former President Obama, should the occasion arise.

    There are other possible choices for “structure”, but those are so darned inconvenient. Things like the “structures” imposed by the US Constitution or the oath the President takes. Things like the Rule of Law. Things like judicial review and checks and balances. Those “stuctures” are damned inefficient and even inconsistent with the achievement of the goals of President/Good Man Obama, so let’s just speak generally of them as “laudatory principles” for now, and we can attend to applying them only in the event President/Good Man Obama somehow finds himself no longer President. At which time the tune will change. Whether anyone will heed the change in tune of a “former President” when the next President is doing the same thing even if not a “Good Man”, how would you bet?

    I commend those journalists who are trying to actually ask questions like this of President/Good Man Obama. But I wonder at the strategy reflected by the way that President Obama and his handlers are tossing out these little sound bite opportunities (not just this one, but also the St. Louis local TV guy allowed camera minutes to ask about presidential assassinations and be met with scripted non-answers for twelve seconds, as linked in Glenn Greenwald’s post today at The Guardian) — it’s plain that this is part of a strategy to appear “open” about this crap while actually simply lying in suggesting that it’s part of “adherence to the Rule of Law” to assassinate Americans, bomb countries with which we are not at war, and claim “secrecy” to hide the countours of programs that are bragged about by top administration officials when it appears advantageous. Every major media outlet should be replaying these media tidbits and every reporter with an ounce of integrity should be leading every interview with follow-up questions based on the litany EW has laid out here.

    Shameful.

  6. emptywheel says:

    @harpie: Thanks for pointing it out. I was going to do so but wanted to focus on his claims as presented. BUt he did ignore the whole protect and defend hte CONSTITUTION bit.

  7. What Constitution? says:

    @harpie: Yep. Or, as EW replied, it’s “the whole protect and defend the CONSTITUTION bit.” You’re absolutely right.

    With Obama’s speech coming up tonight, your comment reminds me of 2008. I recall being struck by the glaring omission of any reference to the Constituion by any major speaker at the Rethug convention (with only one exception: Mitt Romney used the Constitution as the butt of a joke about Supreme Court nominees). They obviously didn’t want to go there with illegal wiretapping, torture and the like still presenting possible “adverse results” (those were the days, huh?). But Candidate Obama, in his acceptance speech, affirmatively stated that he was “looking forward” to accepting his obligation to “protect and defend the Constitution of the United States of America [thunderous applause]” at the Democratic Convention.

    Wondering whether we’ll get a repeat of that quote tonight. I bet he won’t do it because he’ll be afraid people will accuse him of being as factually dishonest as Ryan was last week….

  8. Torture Is As Torture Does says:

    Human Rights Watch said it has uncovered evidence of a wider use of waterboarding in American interrogations of detainees than has been acknowledged by the United States, in a report Thursday that details further brutal treatment at secret CIA-run prisons under the Bush administration-era US program of detention and rendition of terror suspects.

    http://www.stripes.com/news/us/rights-watch-evidence-of-wider-use-of-waterboarding-by-us-1.188260

  9. Ol' Scratch Laughs says:

    We Got Drones!! Get Yer Red Hot Drones Right Here!! Drones!! A Booming Market!! (pardon the pun)

    USA Dept of War lists 66 countries as eligible to buy USA drones

    As many as 66 countries would be eligible to buy USA drones under new War & Marketing Department guidelines but Congress and the State Department, which have a final say, have not yet opened the spigots for exports.

    The 66 countries were listed in a War & Marketing Department policy worked out last year to clear the way for wider overseas sales of unmanned aerial systems, as the Pentagon calls such drones.

    Northrop Grumman Corp chief executive Wes Bush praised the Obama administration for what he described as significant moves to boost arms exports, but voiced frustration at delays in codifying them in a new export policy.

    “I wish we were further along in getting that done. It’s slow, it’s painful, but we’re doing the right things to move in that direction,” Bush said.

    US Death & Destruction merchants are looking abroad to help offset Department of War spending cuts spurred by US deficit-reduction requirements.

    http://www.reuters.com/article/2012/09/06/us-aircraft-usa-northrop-grumman-idUSBRE88500B20120906

  10. bell says:

    great overview emptywheel of obama’s bullshit.. gitmo and drones presently operate outside the rule of law.. obama talks a good line, but he is full of shit.

    ….”that you avoid any kind of slippery slope into a place where we’re not being true to who we are.” the usa under obama is already their…

  11. Michael Murry says:

    The Constitution, by definition and intent, provides the only — and only necessary — legal structure required by the citizens of the United States of America to constrain the powers delegated to their government. If President Obama cannot — or will not — abide by the provisions of this structure — namely, the separation of powers — then it follows that he will not abide by the provisions of any other “structure” that he may devise or revise for his own — and only his own — convenience. Having demonstrated no respect for the Constitutional “structure” that he finds too restrictive of his whims, one can feel certain that he will show the same cavalier disregard for any other rhetorical “structure” that he may command his minions to provide him on demand.

  12. MadDog says:

    I can’t wait to see what effect the Yellin interview will have, if any, on the ongoing ACLU and NYT drone FOIA lawsuits.

    One would think that the judge would use some common sense and smack down the US government’s ridiculous stonewalling arguments, but common sense is all too uncommon.

  13. earlofhuntingdon says:

    Mr. Obama is looking for ways to measure and to promote his compliance with the rule of law in the same manner that he is trying to deliver on his pledge to make Prof. Dawn Johnsen head of the DoJ’s OLC. That Mr. Obama can make such specious arguments as he does here – without sprouting a fifty foot nose or making holy water boil at the National Cathedral – is beyond the ken of mere mortals, but does demonstrate his contempt for the rule of law and the government upon which it depends.

  14. Milton Arbogast says:

    Matt Stoller hints (or states) that this year’s election is a sham. On the Republican side, numberless “consultants” saw an opportunity to fleece a few dozen rabid plutocrats of hundreds of millions of dollars, and on the Democratic side, these same consultants saw a similar, if slightly less rewarding, opportunity to erect a very convincing bogey man in order to fleece the poor of whatever they could shake out of their pockets by turning them upside down with fear.

    I agree. And I offer as proof Representative Ryan. Electorally, he does not help the “Romney Ticket” in any way, but he facilitates the consultants job on the Republican side and on the Democratic tremendously.

    The election is a charade being performed before whoever will pay money in the belief that the result is not rigged.

    It isn’t rigged? Well, in that case, why does the “Romney Team” still have a far smaller “ground presence” than the “Obama Team” and why does Nate Silver basically have the election already won by Obama.

    This post is so, so, so right. Obama is wonderful fraud.

  15. Milton Arbogast says:

    Hell, I would go so far as to say that the thing the “Obama Team” feared above all things was rolling easily to victory in this election: no money. Even Sheldon Adelson will not just put money down the toilet in a losing cause.

    So Obama had to empower the “Right” enough in the first four years to insure that this election would be close… so the money would roll.

    He did a hecka of a job.

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