Michael Heath, a longtime reader I respect a great deal for his consistently thoughtful contributions (and really think he should have his own blog; many of the comments he writes are really blog posts themselves), has challenged me on having said that Obama is a “liar and a fraud” and that his presidency has been a “disaster.” Those are conclusions that I think are not just valid but inescapable after three years and I will defend them here.
1. A liar and a fraud. Let me just start with the obvious, which I have been documenting for three straight years here. On April 29, 2009 Obama was asked by a reporter about his administration continuing to invoke the broadest possible version of the State Secrets Privilege in three court cases. He said then that he was opposed to that broad SSP and only favored a narrow version of it that would work as an evidentiary privilege:
Question: Thank you, Mr. President. During the campaign, you criticized President Bush’s use of the state secrets privilege, but U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s? And do you believe presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition if classified information is involved?
Obama: I actually think that the state secret doctrine should be modified. I think right now it’s overbroad.
But keep in mind what happens, is we come in to office. We’re in for a week, and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through, what exactly should an overarching reform of that doctrine take? We’ve got to respond to the immediate case in front of us.
There — I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety.
But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it’s not such a blunt instrument.
And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that as we speak.
That was a lie, plain and simple. Since that time, his administration has invoked and argued for the broadest possible conception of the SSP in every single case where the government has been challenged for illegal and unconstitutional actions in the war on terror. Every. Single. One. Including cases where the allegedly secret information had already been released. He has not argued for a narrower version in a single case. He has not argued for the use of any of the long-established tools he says he wants but already exist — in camera, ex parte or sealed proceedings, for example — for protecting classified information in court, procedures that have been used in thousands of cases for decades without ever resulting in the release of anything important to the public, in even one case. What else could we possibly conclude except that he was lying?
I could easily go on and on with situations where Obama has said one thing and then done the opposite, but there’s little need to do so. I have documented them exhaustively over the last three years and, if I recall correctly, Heath has agreed with me on nearly every one. His main objection seems to be that I can’t say this unless I am willing to call all presidents the same thing:
I think this very tough assertion works only if you are willing to describe nearly every, if not all, presidents with the same description. Are you calling all or nearly all presidents each a fraud and a liar? …
Each president I’ve studied has sought ‘tried-and-true’ along with novel ways to extend the power of the executive beyond their constitutional limits. I concede I was actually naive enough to believe this president would reverse this trend and consistently apply the same principle rather than defending the Constitution haphazardly. I concluded ‘he’d be different’ because Barack Obama was the first president I’d ever encountered who served in my lifetime who actually demonstrated a sufficient understanding of the plain meaning of the Bill of Rights and how these amendments relate to the DofI.
And I answered in the affirmative, saying that I would call nearly every president the same thing “without hesitation.” But I think this is an objection that is trivial at best. Do all presidents lie? Of course they do. Every politician lies. And every politician breaks promises. But all such instances are not equal; some are far more damaging than others. As I pointed out in response to that comment, the issues on which Obama has said one thing and done the other are issues at the very core of our constitutional system.
The use of the State Secrets Privilege to make the executive branch immune to all legal challenge is not just some minor little issue. It is, quite literally, the end of all practical limits on the power of the executive branch. It is the end of the checks and balances that were intended to protect us from executive omnipotence. It is the end of the separation of powers. If the president can end any legal challenge merely by declaring that it involves a state secret — and that is the case so far, and I have no faith in the Supreme Court to change it — then his power is virtually limitless and the Bill of Rights and the Constitution are dead letters.
Let me give you just a list off the top of my head of a few examples of similar problems:
1. After saying that he would filibuster any bill that included telecom immunity while he was in the Senate, he turned around and supported the FISA extension bill that did so.
2. After saying he was opposed to many of the unconstitutional provisions in the Patriot Act, he then pushed through as president an extension of that bill that not only continued those dangerous provisions but made them worse.
3. After giving grand speeches about the importance of accountability and the rule of law, he has made sure that no one would ever be prosecuted for torture, thus violating our treaty obligations and rendering our signature on the UN Convention on Torture absolutely meaningless. And of course, he’s also made sure that there would be no civil cases to hold them responsible either through the use of the SSP.
4. After declaring that he would have the “most transparent administration in history” he has done quite the opposite, arguing against transparency in court time and again.
5. After declaring the importance of civilian trials for terror suspects, he has actually instituted a three-tiered system that gives civilian trials for some detainees (though none have actually happened), military tribunals for others (tribunals that are a travesty of justice, as declared even by many JAG officers involved in the prosecutions), and indefinite detention without trial for others.
6. His administration has argued in favor of absolute immunity for prosecutors.
7. His administration has argued against access to DNA evidence that could prove an inmate’s innocence.
8. Despite his public declarations against torture, there is strong evidence that such abuse continues in detention facilities on military bases.
A Disaster. The conclusion that Obama has been a disaster flows inexorably from the the facts above. Heath’s argument, in essence, is that I’m not counting all the good things he’s done and I’m “disproportionately weighing certain issues.” And he’s right about that. I am absolutely weighing these key constitutional issues — illegal surveillance, executive power, the rule of law, the state secrets privilege, the 4th amendment, checks and balances — as far more important than others. And I do so openly and without apology.
Has Obama done some good things? Of course he has. I’m thrilled that he worked to end the ban on gays and lesbians serving openly in the military, for example. And I’ve praised many things he’s done. But I just don’t think those things compare much to the many ways he has helped to destroy constitutional limits and enshrined executive abuse even further. Some issues are far more important than others.
Perhaps the worst part of this, as Glenn Greenwald keeps pointing out, is that Obama’s embrace of the executive abuses of power has made those abuses a matter of bipartisan consensus now. When Bush was doing the same things, there was at least some token Democratic opposition to it, but nearly all of that opposition disappeared when Obama got into office. Advocates for the constitution like the ACLU, the EFF and folks like me have remained consistent, but the Democratic party, which was never really an effective block to such abuses of power, is now nothing more than a rubber stamp.
These actions are not mere disappointments, they are betrayals. He has the opportunity to support the rule of law and end the constitutional abuses of his predecessor. He chose not to. And that makes him a liar, a fraud and a disaster. You’re free to disagree, of course, but you aren’t going to convince me otherwise.