The War on Terror in the age of Obama
By Kyle Bowen, staff writer
Just over a week ago, moderate Republican senator Olympia Snowe announced her intention to retire from public office at the end of her term, decrying congress’s “hyperpartisan” atmosphere. 
This critique is by no means novel; political and media elites are quick to blame partisan gridlock for executive and legislative failures, and their disastrous consequences. However, an often-overlooked fact is that many of our most disastrous policies enjoy bipartisan (and mainstream media) support. The two-party system narrowly circumscribes the scope of acceptable public discourse, and anyone who deviates from establishment orthodoxy is derided as some kind of fringe lunatic. This serves to further entrench the current power structure (and those who benefit from it) and to marginalize anyone who attempts to challenge the status quo. There are many examples of this trend, but over the past ten years, it is perhaps best exemplified by the policies relating to the War on Terror. Bi-partisan consensus, coupled with the progressive disintegration of dissenting voices, has enabled some of the most egregious civil liberties abuses as well as the unfettered proliferation of executive power.
One of the most contentious aspects of the Bush Administration’s War on Terror was the indefinite detention (and subsequent torture) of accused terrorists. While some influential Democrats were complicit in enabling these controversial policies, many stood in vocal opposition. Particularly noteworthy is an impassioned speech given on the senate floor in 2006 by then-Senator Barack Obama.
He warned that under Bush’s indefinite detention policy, “a perfectly innocent individual could be held and could not rebut the Government’s case and ha[ve] no way of proving his innocence.” He acknowledged that while mistakes in terrorist identification are inevitable, “what is avoidable is refusing to ever allow our legal system to correct these mistakes.” And regarding the national security implications, he asserted “restricting somebody’s right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.”
While this eloquent defense of habeas corpus and the Bill of Rights did little to prevent indefinite detention, it did facilitate a more complete public debate regarding a controversial issue. For fans of democracy, this should be welcome news. However, Obama’s 2008 election initiated the transformation of these once-controversial War on Terror policies into sacrosanct matters of bi-partisan consensus.
Obama’s adversarial posture towards Bush-era counterterrorism policies changed markedly after he was safely elected. Before he was even inaugurated, the President-elect signaled his reluctance to “authorize a broad inquiry into Bush Administration programs like domestic eavesdropping or the treatment of terrorism suspects.” Shortly after taking office, Obama accelerated the CIA’s covert drone program, which continues to this day, despite the ambiguity regarding its legality, as well as its effectiveness in neutralizing or deterring militants. The quiet crescendo of dissenting voices, mostly confined to foreign media outlets, human rights groups and legal scholars, grew more vociferous shortly after September 30, 2011, when it was reveled that a drone strike in Yemen had targeted and killed al-Qaeda propagandist and American citizen Anwar al-Awlaki. This event is noteworthy not just because al-Awlaki was an American citizen, but also because the decision to assassinate him was made in total secrecy, without a shred of due process or meaningful judicial scrutiny.
It is widely believed that a classified Office of Legal Council memorandum outlined the administration’s justification for targeting al-Awlaki, although it has not been publicly released and the White House has yet to acknowledge the existence of such a document. Last week, in a speech at Northwestern University, Attorney General Eric Holder laid out the Obama administration’s defense of extra-judicial assassination (which was conspicuously devoid of any footnotes or specific legal citations). The crux of Holder’s argument rests upon the following claim:
Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process (emphasis added).
Look at the way Holder casually marginalizes the role of a “federal court.” Since the panel that decides who will be targeted for assassination operates surreptitiously, with no public record of its methodology or conclusions, “due process”as Holder understands it is the exclusive and clandestine domain of the executive branch, with no Legislative sanction or judicial oversight. This flies in the face of even the most basic understanding of American law, regardless of whether or not we’re at war (Stephen Colbert has more on this point).
None of this is to say that al-Awlaki was not a incendiary radical, or that we aren’t safer with him out of the picture (although this claim is not universally supported by foreign policy cognoscenti). The broader issue here is that the President has asserted an unprecedented expansion and consolidation of executive power, and he has done so in the absence of any meaningful opposition. Two factors have enabled this trend: first, by drawing a (dubious) distinction between “due process” and “judicial process,” Holder has in effect removed the institutional check on the power of the executive (i.e. the judiciary); and second, because this is taking place during a Democratic administration, any potential political opposition is effectively neutralized. Stay tuned, I’ll explain.
Lets look at just how far we’ve come in six years. Recall the liberal backlash that ensued when President Bush asserted the authority to merely detain suspected terrorists without due process. Recall the eloquent defense of the rule of law, passionately outlined by an up-start Senator from Illinois with Presidential aspirations.
In a 2008 speech, a young(er) Eric Holder mocked the “just trust us” approach to national security, decrying the fact that in the post-9/11 era, the United States had “secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution” (emphasis mine).
Now, both of these staunch defenders of the Constitution and the rule of law are asserting the power to kill American citizens, in secret, without due process, transparency or oversight. To summarize Obama’s position: it would be wrong to indefinitely detain an individual accused of terrorism because a “perfectly innocent individual could be held and could not rebut the Government’s case and ha[ve] no way of proving his innocence.” But there is nothing wrong with killing an individual under the same circumstances. And for Holder, the “just trust us” approach is unconstitutional and against international law when it comes due process-free detention of terror suspects, but it is a fine justification for due process-free assassination of terror suspects (even if they are American citizens).
Former Bush CIA and NSA chief Michael Hayden notes the irony “we needed a court order to eavesdrop on him but we didn’t need a court order to kill him. Isn’t that something?”
This ideological about-face is not unique Democratic politicians. A recent Washington Post-ABC News poll found that 53% of self-described liberal Democrats support keeping Guantanamo Bay open, while 67% of moderate to conservative Democrats feel the same way. Furthermore, fully 77% of liberal democrats support the use of drones, dropping only slightly when respondents were asked specifically about targeting American citizens. These same liberal Democrats were once vehemently outraged by much less draconian security measures, provided they were implemented by the Bush administration. The self-described progressive website Think Progress was also quick to celebrate Awlaki’s death as a “foreign policy success,” as was left-of-center TPM.
It is important to note that the complex and dynamic modern world presents unique and difficult challenges to policymakers. The al-Awlaki case in particular presents thorny questions about how to reconcile Constitutional provisions with national security concerns. However, none of this is an excuse for the expedient, ideological flexibility (and, more to the point, repulsive hypocrisy) that is now rampant in Democratic circles. Many of the most controversial aspects of Bush’s War on Terror were vociferously opposed by Democrats less than a decade ago, only to be enthusiastically endorsed when they were executed at the behest of a Democratic president. Not only did Obama continue the contentious policies that Democrats used to denounce, he increased executive power to levels John Ashcroft couldn’t dream of. Obama’s election marked the beginning of the progressive erosion of mainstream opposition to Bush’s once-controversial counterterrorism policies. This trend must be reversed.
An open and adversarial national dialogue is essential to a functioning Democracy. To that end, it is imperative to avoid blind partisan loyalty and delusional hagiography, while remaining wary of pundits eager to dismiss as “insane” anyone who deviates from partisan orthodoxy.
Photo Credit: BBC
