The Albatross of Obama’s “Rule of Executive Order”

The other day, John Bellinger and Matthew Waxman joined the long list of people voicing opposition to the detention provisions of the Defense Authorization. Yet there’s a part of their column that has received little focus, in spite of the fact it’s one of the things Bellinger emphasized when he linked to their column at Lawfare.

Bellinger and Waxman scold President Obama for not following through on his promise to develop laws covering terrorism detainees.

President Obama should have followed through on his pledge in his May 2009 National Archives Speech to work with Congress to develop an appropriate legal regime for detention of terror suspects who cannot be prosecuted or released, and Congress should have been more responsive to the concerns of counterterrorism officials in the Executive branch.

The substance of that promise–given at a time, remember, when Democrats had the majority in the House and 59 (soon to be 60) Senators in the Senate–was:

Now let me be clear:  We are indeed at war with al Qaeda and its affiliates.  We do need to update our institutions to deal with this threat.  But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability.


There are no neat or easy answers here.  I wish there were.  But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo.  As President, I refuse to allow this problem to fester.  I refuse to pass it on to somebody else.  It is my responsibility to solve the problem.  Our security interests will not permit us to delay.  Our courts won’t allow it.  And neither should our conscience.


Having said that, we must recognize that these detention policies cannot be unbounded.  They can’t be based simply on what I or the executive branch decide alone.


I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred.  Our goal is not to avoid a legitimate legal framework.  In our constitutional system, prolonged detention should not be the decision of any one man.  If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.  And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.


We seek the strongest and most sustainable legal framework for addressing these issues in the long term — not to serve immediate politics, but to do what’s right over the long term.  By doing that we can leave behind a legacy that outlasts my administration, my presidency, that endures for the next President and the President after that — a legacy that protects the American people and enjoys a broad legitimacy at home and abroad. [my emphasis]

Obama made that promise in a speech that spoke grandly about the importance of using our fundamental values–our laws–to beat tyranny.

I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values.  The documents that we hold in this very hall — the Declaration of Independence, the Constitution, the Bill of Rights — these are not simply words written into aging parchment.  They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality, and dignity around the world.


From Europe to the Pacific, we’ve been the nation that has shut down torture chambers and replaced tyranny with the rule of law.  That is who we are.


The Framers who drafted the Constitution could not have foreseen the challenges that have unfolded over the last 222 years.  But our Constitution has endured through secession and civil rights, through World War and Cold War, because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way.  It hasn’t always been easy.  We are an imperfect people.  Every now and then, there are those who think that America’s safety and success requires us to walk away from the sacred principles enshrined in this building.  And we hear such voices today.  But over the long haul the American people have resisted that temptation.  And though we’ve made our share of mistakes, required some course corrections, ultimately we have held fast to the principles that have been the source of our strength and a beacon to the world.

Obama invoked “rule of law” on eight different occasions in the speech.

And then, Obama proceeded not only to renege on his promise to pass a law codifying detainee policy, but to try to pre-empt Congressional efforts to pass such laws by whipping together an Executive Order covering detention. After arguing that detention (and, presumably, targeted killing) should not be “based simply on what [he] or the executive branch decide alone,” he made sure that the Executive Branch would retain the ability to make up these policies in secret, with little oversight, an approach Obama’s DOD General Counsel reaffirmed last week.

Obama promised us rule of law. But then, he gave us rule of Executive Order.

And because he was unwilling to fight for the principles he extolled so eloquently (not even with majorities in both houses of Congress), Congress is threatening to pass the kind of law Obama once promised–but one that would upend our entire legal system.

Back when Obama made this tribute to our Constitution, he also issued a warning.

And if we refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future.

There was some real wisdom in that Archives speech.

(Albatross image by Thomas Mattern under Creative Commons Attribution ShareAlike 3.0 license)

31 replies
  1. rugger9 says:

    I wonder just how much Shrub left behind in messes with problems. Obama’s faults in the realm of openness and rule of law are well documented in the blog and he does own a lot of the continuing issues. With that being said, and knowing just how Darth works in the shadows, I have to wonder just what was 1) left behind to deal with that couldn’t come out in the open, and 2) just what restraining info Darth has on Obama which has probably been shared with the banksters currently avoiding any accountability while raking billions of tax dollars into their bank accounts.

  2. emptywheel says:

    @rugger9: I’ve always believed our holding family members of terrorists was part of the problem.

    That said, once you kill Awlaki the way Obama did, you’ve got no ability to push this back to Cheney anymore. He had the opportunity to have legal review, and chose not to take it.

  3. Story of O says:

    > our efforts to combat terrorism in the future

    Obviously, that was never the true goal. The president is a rotten apple.

  4. Mary says:

    302 – Statement on Signing Bill Repealing the Emergency Detention Act of 1950.
    September 25, 1971

    Richard Nixon

    “I HAVE today signed into law a measure recently enacted by the Congress repealing the Emergency Detention Act of 1950. This repeal legislation was wholeheartedly supported by this Administration.
    The Emergency Detention Act was enacted as title II of the Internal Security Act of 1950. Among its provisions, it established procedures for the apprehension and detention, during internal security emergencies, of individuals likely to engage in acts of espionage or sabotage.

    No President has ever attempted to use the provisions of this act. And while six detention camps were established and funded by the Congress, none of them was ever used for the purposes of this legislation. In fact, all six camps have been abandoned or used for other purposes since 1957.

    Nevertheless, the mere continued existence of these legal provisions has aroused concern among many Americans that the act might someday be used to apprehend and detain citizens who hold unpopular views. Some have feared that it might someday be used to permit a situation comparable to the detention of Americans of Japanese ancestry during World War II.

    I have supported and signed this repeal in order to put an end to such suspicions. In taking this action, I want to underscore this Nation’s abiding respect for the liberty of the individual. Our democracy is built upon the constitutional guarantee that every citizen will be afforded due process of law. There is no place in American life for the kind of anxiety–however unwarranted–which the Emergency Detention Act has evidently engendered.

    This strong country has no reason to fear that the normal processes of law-together with those special emergency powers which the Constitution grants to the Chief Executive–will be inadequate to deal with any situation, no matter how grave, that may arise in the future. But we do have a great deal to fear if we begin to lose faith in our constitutional ideals. The legislation I have signed today keeps faith with those ideals.

  5. rugger9 says:

    @emptywheel: #3
    Which is why I said he owns some of it, and in other posts I also noted as a ConLaw professor Obama knows better. He didn’t teach at Regent, after all. However, we all know that these kinds of things start courtesy of slippery slopes, and FWIW, there is more than a few unaccounted for at Bagram, Abu Ghraib, etc., on Cheney’s watch, as well as the unexplained suicides and accidental deaths. Or Amerithrax. The point I’m making is that Obama in his looking forward mantra made a critical choice not to address past abuses, and I’m sure some of those are pretty wretched indeed.

    Or, there are photos.

  6. rugger9 says:

    @Mary: #8
    Given the history of his antics in the 50’s, Nixon would have been the last one expected to do this, or the best one.

  7. William Ockham says:

    If there ever was a case where “slippery slope” makes sense as an analogy, this is it. Obama went into to office with the right ideas, except for the notion that he could address these issues without challenging the institutions involved. His unwillingness and/or inability to confront the issues head-on made the slow, sad slide towards the elected dictatorship inevitable. This all played out exactly the way Cheney planned it. He understood that the temptation of freedom of maneuver would entice the next president in to the trap he laid.

  8. PeasantParty says:

    Oh yes! Obama owns this mess now.
    I think the first thing he should have done is to redefine Acts of War. We do not have a legally declared war against a state, yet we have been at war with states. Does the war against Terror give the US the right to bombard any country and it’s citizens because a suspected member of a group resides there?
    Also, the term “acts of terror” seem to have broadened to a height that even a two year old throwing a shovel out of the sandbox could be pinpointed.
    Any President that agrees to imprision it’s citizens without due process needs to be Impeached immediately and the Country needs to re-create it’s government!

  9. PeasantParty says:

    @William Ockham:

    This all played out exactly the way Cheney planned it. He understood that the temptation of freedom of maneuver would entice the next president in to the trap he laid.

    Agreed! Not only Cheney, but Papa Bush as well.

  10. jerryy says:

    From the OT but related and I am Not Making This Up Department:

    1) “DARPA wants to give smartphone developers access to the DOD’s fleet of Hellfire missile-equipped UAVs. Instead of using a single, remote pilot to fly just one UAV, DARPA imagines ‘an app […] that allows a swarm of small deployed UAVs to be controlled as a single unit (a hive [mind] so to speak).”

    2) “A U.S. District Court judge in Portland, Ore., ruled that a blogger who wrote about an investment firm that subsequently accused her of defamation must pay the company $2.5 million because she’s a blogger who doesn’t legally qualify as a journalist.”

  11. MadDog says:

    OT – 1 minute ago via Scott Shane and David E. Sanger of the NYT:

    “Drone Crash in Iran Reveals Secret U.S. Surveillance Effort

    The stealth C.I.A. drone that crashed deep inside Iranian territory last week was part of a stepped-up surveillance program that has frequently sent the United States’ most hard-to-detect drone into the country to map suspected nuclear sites, according to foreign officials and American experts who have been briefed on the effort…

    …The overflights by the bat-winged RQ-170 Sentinel, built by Lockheed Martin and first glimpsed on an airfield in Kandahar, Afghanistan, in 2009, are part of an increasingly aggressive intelligence collection program aimed at Iran, current and former officials say. The urgency of the effort has been underscored by a recent public debate in Israel about whether time is running out for a military strike to slow Iran’s progress toward a nuclear weapon…”

  12. MadDog says:

    @MadDog: Let me congratulate the Emptywheel blog for the coverage of this topic.

    I firmly believe that at the very least, the NYT authors of this article read here, and perhaps even the US government.

    The reason I feel so strongly about this is the simple fact that the questions and issues we were raising here are some of the things the NYT, through their anonymous US official sources, attempts to answer or respond to in the latest article.

    I should point out that I have found no other site on the Net where these questions and issues were raised, and I have looked long and hard over the past several days.

  13. Jim White says:

    @MadDog: I’m still trying to make this all compute. Check out this nifty map of Iran’s nuclear-related sites.

    Now when we try to put that in perspective with the info in this article, we find that the drone was downed in Kashmar and that it is assumed the base in Afghanistan out of which it was operating is in Shindad. The best I can tell, Kashmar is in the center of the small, roundish province in the northeast of Iran, due south of Sarakhs. Shindad comes up as being just west of the pointy part of the border due south of Herat and would fall under the box in the map labeled Esfahan: Nuclear Research UCF Facilities.

    The problem is that the site where the drone came down does not fall into a direct trajectory from Shindad to any of the marked nuclear sites. This problem appears to go away if we assume the real base for the drone is Uzbekistan.

  14. MadDog says:

    @MadDog: So on to the things that the NYT and their anonymous US official sources try to answer or respond to:

    1) I wanted to highlight this particular issue. We called bullshit on the spin that anonymous US official sources in a number of earlier news reports tried to sell the public that the mission of the stealthy, radar-evading RQ-170 was for surveillance of the Taliban insurgent activity in western Afghanistan.

    We noted that the Taliban has no radar and that it was preposterous to use the stealthy, radar-evading RQ-170 for this purpose. The NYT article now confirms that this previous spin via anonymous US official sources was nonsense.

    2) These 2 paragraphs from the NYT article should ring alarm bells to any American with a brain:

    “…Surveillance of Iran is nothing new: American satellites have been trained on its nuclear facilities, their missile bases and their defenses for many years. But the RQ-170 Sentinel, which can fly at an altitude of 50,000 feet, is considered vital to the effort.

    While an orbiting surveillance satellite can observe a location for only a few minutes at a time, a drone can loiter for hours, sending a video feed as people move about the site. Such a “pattern of life,” as it is called, can give crucial clues to the nature of the work being done, the equipment used and the size of the work force…”

    First off, let’s be clear that what US has been and is doing is deliberately violating the airspace of another country. If a similar mission was conducted over the US by another country, many would rightly consider that an Act of War.

    Secondly, I question the assertion in the NYT article that the use of the RQ-170 to loiter for hours over targets within Iran would allow the US to determine a “pattern of life”.

    A limitation that is rarely admitted to in discussions about the US’s use of stealthy, radar-evading manned and unmanned aircraft is the fact that the time they are most optimally used is during the night. Daylight missions for US stealthy, radar-evading manned and unmanned aircraft are avoided at all costs because these aircraft are visible to the Mark 1 eyeball just like any other aircraft.

    The idea that a stealthy, radar-evading RQ-170 would be loitering for hours over an Iranian target in the middle of the day in order to capture a “pattern of life” seems to violate the very premise of the US stealth aircraft mission strategy of not being seen.

    If those anonymous US official sources are now going to claim that they only flew the stealthy, radar-evading RQ-170 over Iranian targets during the night, then they are going to have to retract their insistence that they could watch in real-time as “people move about the site”. At night, I suspect the Iranians go to bed and sleep just like the rest of us.

    Thirdly is this issue from the NYT article:

    “…In addition to video cameras, independent experts say the drone almost certainly carries communications intercept equipment and sensors that can detect tiny amounts of radioactive isotopes and other chemicals that can give away nuclear research…”

    (My Bold)

    I question the judgment of the US officials who would do such a thing. In the Northern hemisphere, the prevailing wind is out of the west. If the US government wanted to “sniff” the air for tiny amounts of radioactive isotopes, all they had to do was wait a couple of hours as the wind blew any Iranian radioactive isotopes east to Afghanistan.

    This is in fact how the US has captured radioactive isotopes signaling nuclear weapon construction and even detonation for decades now from the former Soviet Union, China and more recently North Korea. The US would fly specially equipped aircraft to the east of these countries and “sniff” the air.

    Finally, I would again strongly question the judgment of the US officials for putting a highly classified and much sought after US technology advantage at risk by flying the RQ-170 over a country that has been at odds with the US for decades now. Particularly when there were other US means that could accomplish the same results without jeopardizing this valued US technology, when there were other US means that did not violate the borders of another country, and lastly, did not intrinsically fan the flames of war with Iran.

    I would hazard a guess that in the case of my last assertion, that this was a deliberate US policy decision of “in your face” to Iran.

  15. MadDog says:

    @Jim White: Sorry Jim. I was deep into writing my long-winded comment so it took me a bit to get back to yours. *g*

    Yeah, Kasmar is way the hell to the north in Iran. It may be that the RQ-170 was just randomly headed there after the US lost control.

  16. MadDog says:


    “…I would hazard a guess that in the case of my last assertion, that this was a deliberate US policy decision of “in your face” to Iran.”

    My assertion above would seem to be borne out by tonight’s WaPo article by Joby Warrick and Greg Miller:

    “Stealth drone highlights tougher U.S. strategy on Iran

    The CIA’s use of surveillance drones over Iran reflects a growing belief within the Obama administration that covert action and carefully choreographed economic pressure may be the only means of coercing Iran to abandon its nuclear ambitions, current and former U.S. officials say.

    The administration’s shift toward a more confrontational approach — one that also includes increased arms sales to Iran’s potential rivals in the Middle East as well as bellicose statements by U.S. officials and key allies — suggests deepening pessimism about the prospects for a dialogue with Iran’s leaders, the officials say…”

    Doesn’t it seem like for decades now that there is a direct correlation between the timing of every President’s re-election campaign and the beating of the drums for war?

    I can’t remember when it hasn’t happened.

  17. orionATL says:

    maddog –

    save yourself the trouble of so much thinking and writing.

    the iran gambit is not about iran;

    the “iranian nuclear threat” and all it’s spin-offs, are a sham issue with respect to any nuclear danger they offer.

    the “iran issue’ is about votes in florida and new york –

    quoth the raven “nothing more” :>)

  18. posaune says:

    OT, sorry folks. just curious about this job posting for Special Counsel in DC:
    Special Counsel is actively recruiting DC Licensed Attorneys with fluency in Polish & experience with Polish-language document reviews. This is to assist with a future document review project. Must be DC barred and have tested fluent in Polish for Special Counsel. Project is anticipated to have 12 hour days for 2-3 weeks. Candidates must reside in the greater D.C. area. This opportunity will begin quickly, pending a conflicts clearance, therefore please send resume in MSWord format with a cover letter at your earliest convenience to [email protected].

    What Special Counsel is this? I guess it could be some contracts case — any chance its related to Jeppeson or the like?

  19. scribe says:

    @posaune: Special Counsel is one of the different companies that provides contract attorneys for document review work. It’s just a trade name. If you go to Craigslist in the various big cities and scan the legal/paralegal job listings, you’ll see these jobs listed in all sorts of languages. And, moreover, it might not be an actual job, yet. It could be the company trolling to build its own list of people who can do the work, so they know whether they can make a bid on the work.

    The way it works is, the big law firms get litigation involving big companies and, rather than have attorneys on their payroll to do document review, they contract that kind of work out to these companies. Document review is, BTW, the name for dumping the email servers (formerly, boxes of documents) and going through them with the list of topics that are germane to document discovery requests from the litigation, and identifying those documents that are germane and those that are not. It’s tedious work but it has to be done and, because relevancy determinations and legal thought are involved, it has to be done by lawyers.

    This kind of work often comes up in the international litigation arena, too, and that’s where the foreign language skills come into play. A number of friends do this kind of work and, while it’s nothing to get rich from, it does keep the wolf from the door.

    Nothing suspicious. The topic of the litigation could be anything that big companies with lots of money to spend on lawyers choose to litigate over.

  20. emptywheel says:

    @MadDog: Are you sure the visibility issue is still true at 50,000 feet?

    I think this article is all about distraction. You’d do pattern of life to make sure a top missile director was at a site before it blew up, for example.

  21. posaune says:

    @scribe: thanks, scribe. fell for that one! It’s possible there is work re the Polish visa legislation under review now. (Of course, the Poles will never get the visa requirements lifted after they gave away the store already. /s)

  22. MadDog says:

    @emptywheel: Regarding the visibility issue, mostly yes. A couple of thoughts there:

    1) The RQ-170 is powered by a jet engine and jets often leave contrails in the sky. From what I understand, there is little or no contrail predictability from meteorologists.

    2) In conjunction with contrails, the RQ-170 supposedly has a wingspan of 60 feet (or more). That likely makes it visible to the naked eye at medium altitudes (say 15,000 to 25,000 feet). Whether the RQ-170 really flies at 50,000 feet is questionable, but if so, its visibility there in a “loitering mode” would also depend on its color scheme. Some experts claim that the supposed light gray pastel-like color scheme is wrong for invisibility at those attitudes and that a darker color scheme would be more appropriate.

    3) Lastly is the sound of a jet-powered engine. Though there are claims that the RQ-170 has a sound-muffling design, that too may be a matter of degree. Again loitering around a fixed target location may render that sound-muffling design scheme moot.

    On the distraction issue, I do still agree with you that a PsyOps campaign is still a very likely US (and Israeli) operation here and every effort is taken to use any and all opportunities to scare the Iranians with disinformation claims about our omniscience.

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