Despite his promises to end the war, President Obama has continued to expand his presidential powers in the War on Terror, which are legal executive privileges that began in the Bush administration. The key difference is that Obama's authority seems to be more ambiguous, more powerful, and less defined than in the previous administrations. When Obama was accused of violating the Constitution with the passage of his Affordable Care Act, at least the Supreme Court could justify the legitimacy of the legislation by invoking the Constitution's Taxing and Spending Clause. However, with the passage of the National Defense Authorization Act for Fiscal Year 2012, he is vested with extrajudicial powers that at times contradict the very principles codified by the Founding Fathers.
One such power is granted under the NDAA's section 1021 and 1022, which contain the provisions that allow the president to indefinitely detain a terrorist suspect without a trial. In an interview with John Cusack on Truthout.com, the George Washington University law professor Jonathan Turley observes that this effectively undermines the due process guaranteed by the Fifth Amendment of the Constitution that could be detrimental to our civil liberties if the power is used irresponsibly.
This violation of the due process of law is viewed by Turley as a dangerous concession by U.S. citizens that could lead to greater encroachment on our liberties in the future. According to Turley, it is "meaningless" that Obama has pledged to not use his powers against U.S. citizens because he still possesses the legal authority to do so. It is uncertain whether future administrations will be so "disciplined" in its refrain from indefinitely detaining or killing U.S. citizens (on home soil) who speak out against the government, tasks that can be legally accomplished by labeling them terrorists and subsequently circumventing the mechanisms of the judicial process guaranteed by the Constitution.
In response to such concerns, President Obama issued a policy directive in February that narrows the coverage of indefinite detention to non-U.S. citizens and does not allow those under his administration to detain citizens or legal permanent residents captured on U.S. soil.
However, legal columnist Joanne Mariner still finds the issue unresolved because the directive could just as easily be rescinded by future presidents. She suggests that American citizens on U.S. soil have not ensured that their constitutional liberties are protected as long as section 1021 and section 1022 of the NDAA remain as they are now because we are subjected to the executive branch's "discretion" unless there are changes to the statute itself. Currently, a bill called the Due Process Guarantee Act that would make it illegal to detain a citizen or lawful permanent resident has been in review by the Senate Judiciary Committee since last year.
Another controversial position taken by President Obama is the expansion of federal authority beyond Afghanistan in the war against terrorism. In a secret interagency memorandum issued by the administration's legal counsel in 2010, wherever someone who is a threat to the security of the United States is located, even outside of war zones such as Afghanistan, it is lawful to kill him "if it is not feasible to take him alive." This expanded geographic jurisdiction was demonstrated in the case of Anwar al-Awlaki, an alleged leader of al Qaeda who was killed in 2011 by an American drone in Yemen with secret consent from the Yemeni president. Thus the war is not simply restricted to terrorist activities in Afghanistan anymore; it can be anywhere. The case was also unprecedented in that it marked the federal government's targeted killing of a U.S. citizen without a trial.
It would be difficult to find a more insightful source into the Obama administration concerning these legal issues than Attorney General Eric Holder. In a speech to students at Northwestern University School of Law this past March, he reveals the administration's position as one whose actions "must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals." After praising the Executive Branch's fairness in allowing terrorists to be prosecuted in civilian courts, he goes on to explain the necessity of occasionally bypassing those courts in favor of military tribunals:
"Military commissions are also appropriate in proper circumstances, and we can use them as well to convict terrorists and disrupt their plots. […] Reformed commissions allow for the protection of sensitive sources and methods of intelligence gathering, and for the safety and security of participants. […] A key difference is that, in military commissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone. For example, statements may be admissible even in the absence of Miranda warnings, because we cannot expect military personnel to administer warnings to an enemy captured in battle. But instead, a military judge must make other findings – for instance, that the statement is reliable and that it was made voluntarily."
The Military Commissions Act of 2009 redefined who would be eligible for trial before military commissions, stating that an "unprivileged enemy belligerent" is compared to the previous "unlawful enemy combatant."
Critics of the statute contend that the definition of a "belligerent" is too broad because it expands the class of persons who will be tried by a military commission as opposed to a civilian court, and that it limits the judicial review for non-U.S. citizens who are accused of even providing "support" to hostilities, putting them on the same ground as those who "engage" in hostilities.
According to Joanne Mariner, except for these few cosmetic changes to the language of the MCA of 2006, which the then-Senator Obama voted against, the key provisions remain essentially the same. She notes that this discrimination on the basis of U.S. citizenship is a violation of international human rights obligations and the Equal Protection Clause of the Constitution.
Holder's response to the criticism is, "There is, quite simply, no inherent contradiction between using military commissions in appropriate cases while still prosecuting other terrorists in civilian courts. Without question, there are differences between these systems that must be – and will continue to be – weighed carefully. Such decisions about how to prosecute suspected terrorists are core Executive Branch functions."
Essentially, Holder is saying that the power to determine suspects who will be tried in a normal civilian court or a military tribunal still lies with the president and those under his authority, not Congress or the Supreme Court.
Even with the Obama administration's claim of goodwill in not exercising the power to indefinitely detain or potentially kill a citizen within the United States without a trial, legislation such as the NDAA sets up the mechanisms that allow the president to largely bypass the checks and balances of the other branches of government, a system so vital to the foundation of our civil liberties that potential transgressions by the executive authority should not be ignored.
Holder ends his speech by saying, "Our most sacred principles and values – of security, justice and liberty for all citizens – must continue to unite us, to guide us forward, and to help us build a future that honors our founding documents and advances our ongoing – uniquely American – pursuit of a safer, more just, and more perfect union."
Let us hope that these values can be reflected unequivocally in our law.