We've referenced President Obama's poor civil liberties record in passing here before, but I'm not sure we've ever devoted an entire post to it. This is surprising, because it's one of the critical reasons we believe the Obama presidency has been such a disappointment.
Glenn Greenwald and others have written about the Obama administration's absurd position on extrajudicial killings. That is, the Obama administration has claimed the novel power to order the assassination of natural-born American citizens by sole virtue of the fact that someone in the executive branch has deemed that person a "threat" or an "enemy combatant." This of course is shockingly similar to the Bush administration's claim that it had the power to capture and imprison American citizens without access to a lawyer, a jury trial or even a formal charge.
Barack Obama spent his entire presidential campaign railing -- rightfully -- against the executive power abuses of the Bush administration. Now, this alleged former constitutional law professor has jumped in with both feet and embraced the very abuses he condemned for so long. This is the height of hypocrisy.
On Monday, the Obama administration argued before a federal court judge that it should have unreviewable authority to kill Americans abroad that the executive branch has unilaterally deemed a threat. This claimed "power" is so patently offensive that it almost doesn't merit a response. To the extent a court would require one, however, the Due Process Clause of the 14th Amendment says this:
"... nor shall any state deprive any person of life, liberty, or property, without due process of law."
It is difficult to imagine a governmental power that is more outside the bounds of the actual language of the Constitution than the ability of the president to unilaterally determine whether an American citizen lives or dies. Of course, there exists an a very broad exception for the battlefield, which no one -- not even the ACLU, who is prosecuting this case on behalf of the father of a targeted American citizen -- claims is illegal or unconstitutional. What is at issue are those situations outside the context of armed conflict, when an American citizen abroad might be sitting at home, at work or at a coffee shop.
The Deputy Legal Director of the ACLU put it thusly: "If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state."
The Obama administration effectively argues two points: First, it has this power. (It most certainly does not under the clear language of the 14th Amendment.) Second, it argues -- even more laughably -- that its power is a plenary executive power that is unreviewable by the courts. It has invoked the longstanding "political question doctrine," an exception courts typically use to dismiss lawsuits by private citizens because what is at issue -- typically things like gerrymandering or political appointments -- are political matters that are better resolved by voting than legislating by judicial order.
But this absurd expansion of the political question doctrine takes the ancient idea far beyond any previous conception. It is unsupported by facts or logic, and finds no support in constitutional jurisprudence of years past.
The Obama administration has also claimed this "power" falls under the state secrets privilege, which is typically a device used by the government to shield documents from discovery that might be sensitive to national security. But in this context, the Obama administration is claiming that its entire program -- the entire basis for this lawsuit -- is a state secret, and therefore the judiciary cannot review it. This is absurd. Patently, offensively, laughably absurd.
Through it all, the Obama administration remains steadfast in its belief that no matter the basis -- the political question doctrine, the state secrets privilege or otherwise -- it retains the power to ignore the very language of the Constitution and kill American citizens abroad -- simply because the president says so.
If tyranny means anything, it must certainly mean this.
The president took an oath to uphold the Constitution of the United States. He is failing his country and failing the institution of the presidency. He is failing those voters who he patently lied to in 2007 and 2008. He has betrayed his oath.
Claiming the authority to unilaterally execute an American citizen, without affording due process and without judicial review, is an impeachable offense.
Of all of Barack Obama's failings, this one is paramount.