Drawing the Line at the Obama Administration’s National Security Practices

CAC encourages outside scholars to guest post on Text & History to broaden the range of constitutional topics discussed on the blog and to add additional voices to the topics we are already discussing. The views expressed in these guest posts do not necessarily reflect the views of CAC. This post is by guest blogger Professor Michael Anthony Lawrence, of Michigan State University College of Law

The Barack Obama presidency is a vast improvement over the disaster of the prior eight years of the Bush/Cheney administration. But nothing’s perfect, including the Obama administration’s positions on national security.

In particular, the Obama administration has shown a disturbing tendency to hedge on the core principles of liberty and due process that it espoused during the campaign; capitulating instead to a disturbing number of discredited Bush-era “war on terror” rationale for maintaining arguably unconstitutional practices.

Specifically:

1. “Prolonged detention” – President Obama has continued the Bush/Cheney practice of allowing indefinite detention without trial or proof of guilt. He should instead insist that all prisoners have access to a fair and speedy trial, as basic constitutional principles of due process requires.

2. Transparency – President Obama showed good instincts in releasing the torture memos, but dropped the ball in blocking release of photos showing American soldiers’ abuse of prisoners in Iraq and Afghanistan. When they were released several years ago, the Abu Ghraib photos exposed the systematic allowance, if not encouragement, by the Rumsfeld Defense Department (with Cheney, as usual, lurking) of a sickening culture of prisoner abuse. In that case, public outrage fueled reforms; if that needs to happen again, so be it – President Obama should stick by his commitments to transparency.

3. State Secrets doctrine – the Obama administration is perpetuating in the federal courts the “state secrets” theory developed by the Bush Administration. This doctrine holds that certain lawsuits, such as those involving allegations of extreme torture in the Bush/Cheney extraordinary rendition program, shouldn’t ever go to trial, since even discussing the facts in court could threaten national security. This is ridiculous. There are all sorts of protections available to keep certain aspects of court proceedings confidential (e.g., in camera review of sensitive evidence, etc.) (in February, I was inclined to give the administration the benefit of the doubt on this issue; but no longer, given the subsequent equivocations.)

There is a temptation among supporters of President Obama to let these matters slide, on the rationale that the Obama administration’s approach is, at its core, based on respect, decency and due process; and that they will not abuse the power that they are attempting to maintain.

But we must resist this temptation. We must be vigilant on these matters, and insist that the Obama administration not equivocate; because as the founders and framers well knew and repeated often, constitutional protections are not necessarily designed for the benign government (after all, the benign government will tend to respect peoples’ rights and liberties), but rather for the aggressive government that tends to abuse the peoples’ liberties. Lest we think the latter is not possible or likely, we need only remember Bush/Cheney, 2001-09. Bush/Cheney opened the barn door on these unconstitutional practices; Obama needs to close the door and rein in the horses before they permanently escape.

Yes, President Obama is a pragmatist by nature; and politically that’s probably a good thing. But on the “liberty” side of the progressive-liberty equation, some things are non-negotiable, such as due process – and the sorts of issues upon which the president is now equivocating go to the heart of due process.

Specifically, the Fifth Amendment to the Constitution specifies: “nor shall any person … be deprived of life, liberty, or property, without due process of law.” At the very foundation of the Anglo-American concept of due process (which has its roots in 1215 Magna Charta, the 1628 Petition of Right and the 1688 English Bill of Rights) is the principle that if the King/government is to hold a person against his or her will, the person must be given a fair and meaningful hearing. The U.S. Constitution memorializes this concept in a number of provisions, including the Habeas Corpus provisions of Article I, Section 9; and the numerous criminal procedural provisions in the Bill of Rights, including the Fourth (unreasonable search and seizure; warrant ), Fifth (Grand Jury in criminal cases, double jeopardy, self-witness, due process); Sixth (speedy and public trial, impartial jury, right to face witnesses, assistance of counsel) and Eighth (excessive bail and fines, cruel and unusual punishment) Amendments. The practices now advocated by the Obama administration – indefinitely holding prisoners, keeping evidence secret, and preventing matters from going to trial – run disturbingly afoul of these core constitutional guarantees.

History will remember President Obama more kindly if he resolutely and unflinchingly restores American principles of liberty and due process; otherwise, by perpetuating the abusive practices initiated by Bush/Cheney, for history’s purposes they become the Bush/Cheney/Obama practices.

Not the sort of historical association that President Obama should embrace.

*Mr. Lawrence is a professor at Michigan State University College of Law; and author of the forthcoming book from Cambridge University Press, Radicals in Their Own Times: Four Hundred Years of Struggle for Liberty and Equal Justice in America (2010). He blogs at Progressive Liberty Blog.

More from

Corporate Accountability
 

Intuit, Inc. v. Federal Trade Commission

In Intuit Inc v. Federal Trade Commission, the United States Court of Appeals for the Fifth Circuit is considering whether the FTC’s authority to issue cease-and-desist orders against false and misleading advertising is constitutional.
Rule of Law
June 20, 2024

Opinion | The tragedy of the Supreme Court’s bump stock ruling

Washington Post
Don’t let technicalities, or a refusal to use common sense, become the enemy of public...
By: Nina Henry
Access to Justice
June 20, 2024

RELEASE: Supreme Court rejects artificial limit on liability for speech-based retaliation by government officers

WASHINGTON, DC – Following today’s Supreme Court decision in Gonzalez v. Trevino, a case in...
By: Brian R. Frazelle
Civil and Human Rights
June 20, 2024

RELEASE: Supreme Court decision keeps the door open to accountability for police officers who make false charges

WASHINGTON, DC – Following this morning’s decision at the Supreme Court in Chiaverini v. City...
By: Brian R. Frazelle
Corporate Accountability
June 20, 2024

RELEASE: In narrow ruling, Supreme Court rejects baseless effort to shield corporate-derived income from taxation

WASHINGTON, DC – Following this morning’s decision at the Supreme Court in Moore v. United...
By: Brian R. Frazelle
Rule of Law
June 19, 2024

The Supreme Court’s approach on ‘history and tradition’ is irking Amy Coney Barrett

CNN
Washington (CNN) — On a Supreme Court where the conservative supermajority increasingly leans on history as a...
By: Elizabeth B. Wydra, Devan Cole, John Fritze