A month ago on Facebook I wrote:
We need to spread the meme that you should never vote for a presidential candidate who thinks the president should have the power to order his own citizens killed or detained forever without trial. Just don’t vote for someone like that. Ever. (And pass on the message if you agree.)
Now I’m going to expand on that. First, what Obama’s done: not only does he claim the power to have US citizens killed without trial, he’s done it, in the case of US-born cleric Anwar Al-Awlaki as well as his 16 year old son (note that while it is known that the Al-Awlaki Sr. was targeted for killing, the Obama administration has refused to say whether the son was also a target or “collateral damage.”)
Ed Brayton’s post “Obama: Liar, Fraud, Disaster” has a good summary of the other problems with Obama on executive power:
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.
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:
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.
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.
8. Despite his public declarations against torture, there is strong evidence that such abuse continues in detention facilities on military bases.
It is true, as I’ve pointed out repeatedly, that both the Bush and Obama administrations have argued that the 2001 AUMF implicitly (i.e., silently) already vests the power of indefinite detention in the President, and post-9/11 deferential courts have largely accepted that view (just as the Bush DOJ argued that the 2001 AUMF implicitly (i.e., silently) allowed them to eavesdrop on Americans without the warrants required by law). That’s why the NDAA can state that nothing is intended to expand the 2001 AUMF while achieving exactly that: because the Executive and judicial interpretation being given to the 20o1 AUMF is already so much broader than its language provides.
But this is the first time this power of indefinite detention is being expressly codified by statute (there’s not a word about detention powers in the 2001 AUMF). Indeed, as the ACLU and HRW both pointed out, it’s the first time such powers are being codified in a statute since the McCarthy era Internal Security Act of 1950, about which I wrote yesterday.
This, incidentally, is what’s wrong with Richard Carrier’s argument that the NDAA wasn’t problematic because of the line that says, “Nothing in this section shall be construed to affect existing law or authorities.” That line would be reassuring if only there were a consensus that “existing law” does not allow for indefinite detention. Unfortunately, thanks to Bush and Obama, there’s now something of a bipartisan consensus (at least among those with actual power) pointing in the opposite direction.
So now on not voting for people who do stuff like this: I actually think the “you’re throwing your vote away” argument against voting third party sometimes makes sense. Saith Eliezer Yudkowsky:
“But you can’t always jump from a Nash equilibrium to a Pareto optimum,” meaning roughly, “Unless everyone else has that same idea at the same time, you’ll still be throwing your vote away,” or in other words, “You can make fun all you like, but if you don’t vote for a lizard, the wrong lizard really might get in.”
Seeing the current situation with Obama, though, has made me realize the best response to this: you can’t always jump from a Nash equilibrium to a Pareto optimum, but sometimes you can, especially if you can talk to other people and persuade them. And while it may not be a realistic goal to try to persuade others to adopt the rule “only vote for candidates Chris thinks are perfect,” I don’t think it’s totally infeasible to get people to adopt the rule I stated at the beginning of this post: never vote for a presidential candidate who thinks the president should have the power to order his own citizens killed or detained forever without trial.
The only question that remains is who I should vote for in 2012. It needs to be someone who is neither Obama nor any of the Republicans other than Ron Paul nor Ron Paul. So what should I do? Vote Green Party? Libertarian? Organize a campaign to draft Al Franken? What?