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Obama and Post-Constitutional America

The Huffington Post The Huffington Post 16/11/2015 Michael Brenner
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Actions that infringe on the Constitution and compromise civil liberties are now a troubling feature of American public life. Most derive from the collective terror psychosis; others are associated with the undue influence of financial interests. The overall weakening of the country's dedication to principle and the drifting attention of our political class are critical facilitating factors.

Theoretically, the checks on abuse of office in the American system are four-fold: socialization into a political culture whose norms are upheld communally by other participants, the media and the general public; enforcement of legal stipulations by the courts; periodic elections; and, ultimately, the resort to impeachment by the legislative branch of government in accordance with procedures embodied in law at every level of government. None is an absolute guarantee of fidelity to proper conduct.

Peer pressure or pressure from monitors of various kinds presupposes a strong consensus on the legitimacy of behavioral norms, a readiness to exert such pressure and a sensitivity to it on the part of the executive. These conditions do not exist today. The judiciary has been corrupted by some of the same societal trends. Cavalier arrogation of personal prerogative by judges to impose their own standards and preferences is commonplace - most egregiously in the federal District, Appeals and Supreme Court.

Competitive elections are frequently cited as the surest check on abusive Executive behavior. They have intrinsic shortcomings, however. Voting preferences are formed in response to a multitude of an office-holders' action; attention spans are short - especially in the age of declining journalistic standards

and trivial pursuits; and partisan loyalties are the main determinants of how candidates are appraised.

Impeachment as a deterrent threat and control fails for two reasons. For one thing, the frivolous approach taken by many in Congress in recent years has tarnished its dignity and seriousness. First we had the Clinton/Lewinsky farce. Then, the Tea Party inspired movements to get rid of Barack Obama for one nominal reason or another when, in fact, their base motives are that he is black or his attitude "un-American" in the lights of Bible Belt uber-patriots or because they need an outlet for their personal frustrations and insecurities.

Hence, high officers of the Republic feel less and less constrained about assuming an intrinsic prerogative to do things that border on, or enter into the realm of the illegal.

Articles of Indictment

Many actions of dubious legality fall short of posing a danger to our constitutional system. They may be pernicious and corrosive of democratic institutions, yet not lethal and/or on the margins of what in principle might be an impeachable offense. Others do represent a threat of that magnitude and should be considered as violations of the Constitution. I believe that a persuasive case can be made that five actions by President Barack Obama meet this standard.

1. Assassination of American Citizens Without Due Process

President Obama asserts his right as President to order targeted killings of American citizens outside the territory of the United States based on his judgment that they pose a threat to the United States by their assumed intent to commit a terrorist act against the country or its citizens anywhere in the world. He claims that his personal deliberation, along with appraisals by senior members of the Intelligence community, meets the constitutional standard of due process. This is a legal travesty. Obama to date has ordered the assassination of one native born American citizen, Anwar al-Awlaki in Yemen. That drone strike also killed his teen-age son. Another drone strike targeting a Yemeni national killed a nephew who too was a United States citizen. These actions are a clear violation of the "due process" clause of the Constitution.

The ensuing discussion, such as it has been, is distorted by specious arguments that are a feature of the fearful atmospherics produced by the "war on terror. There are a lot of red herrings being trailed around Washington to distract from the dangerous path we are going down. They are being swallowed whole by the media as per usual. One is to raise the prospect of having to deal with another hi-jacked plane headed to a populous target a la 9/11 - as brought up by then Senate Majority Whip Dick Durbin. That vivid and scary picture obscures the cardinal feature of the situation: the target in that instance is the terrorist hijacker and the weapon in his possession - the plane which happens to contain civilians including Americans. This is not at all the same as identifying an individual American in advance and making that person the object of arbitrary assassination. The decision whether to shoot down the plane is certainly harrowing. It raises a different order of ethical and legal issues, however, than does the Obama administration's premeditated kill list.

The most extreme situation is the one that has captured the frightened imagination via endless TV thrillers: the diabolical terrorist, perhaps an American citizen, hunched over a nuclear bomb that he is about to detonate. The stakes may be dire but the situational logic is pretty mundane. You don't need extraordinary presidential authority that infringes on constitutional protections to deal with this situation. It is the same in kind as the apprehension of a criminal with a gun or any other weapon who raises it to shoot a hostage or a policeman. A violent response is permissible since the authority to act is inherent in the police function.

The Fifth Amendment to the United States Constitution provides:

[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . .

2. Interference with the Senate's performance of its constitutionally prescribed duties -- including the criminal break-in of computers

This article of indictment concerns President Obama's complicity in the Central Intelligence Agency's violation of its Constitutionally prescribed duty to respect the Congress' oversight of its activities. This duty is reinforced by explicit stipulations of the CIA's enabling statutes. There is no exemption or qualification. Responsibility for the conduct of the CIA lies with the Office of the President as head of the Executive Branch of which the CIA is a constituent part. Its Director, currently John Brennan, is appointed by the President and accountable to him. On March 10 of 2014, Senator Dianne Feinstein, Chair of the Senate Intelligence Committee, spoke on the floor of the Senate to condemn the CIA for undertaking extensive electronic spying on the Committee and its staff by hacking its computers. The motive for doing so was to determine when and how the Committee had read a report prepared three years earlier during the tenure of then Director Leon Panetta that critically examined the Agency's record in conducting interrogations as part of the Global War On Terror (GWOT). That report had been concealed from the Committee in violation of law and practice.

The Senate Committee continually made known to the CIA the progress of its investigation and has shown Brennan and his colleagues, drafts. Brennan wrote a 122 page rebuttal to what was designated the final draft, but he claimed not to have consulted the long completed internal Panetta review. Senate Committee staff did gain access to the "Panetta" report when it appeared among the CIA materials they were reviewing while working at secure Agency premises near Langley. They recognized that its conclusions and those in the Senate Committee draft coincided and that they directly contradicted most of what Brennan's rebuttal had asserted. But CIA officials breached the committee's network in 2010 to remove documents the Agency had included in the files seen by Committee staffers. They included the "Panetta Review" that, according to Feinstein, found "significant CIA wrongdoing," and corroborated the still-classified Senate report.

It was that exposure that led Brennan to hack the Committee staff computers. His later decision to charge the Committee with purloining classified CIA internal documents seemed aimed at diverting attention from those embarrassing contradictions, and his own suppression of the internal Agency report, by charging the Senate Committee with having illegally obtained the document. In other words, his illegal and unconstitutional denial of the Committee's access to a critical document to which they should be entitled, was to be masked by accusing the Senate staff of criminal behavior. The CIA's acting General Counsel, Robert Eatinger, made a formal submission to Attorney General Holder that the Department of Justice investigate the matter - an action that Feinstein called "a potential effort to intimidate this staff." The formal "crimes report" he filed suggested that Congressional staffers had stolen the "Panetta" review.

White House complicity centers on three issues. First is its role in removing the "Panetta" documents from the CIA materials made accessible to the Senate Committee. Second is its approval of the CIA's breaking into the Senate Committee computers. The third is its role in supporting Brennan's request to the DOJ for an investigation of possible criminal behavior by Committee staff.

As to disappearance of Agency documents, Senator Feinstein, in her Senate speech, asserted that she had been told by the CIA at one point that "the removal of the documents was ordered by the White House." Subsequently, the "Panetta" report too was removed by the CIA hackers. In the first instance, the White House denied giving the order. Since then neither the President nor his Press Secretary Jay Carney has denied Feinstein's assertion. If Obama ordered their removal, it would accord with the draconian measures that his administration has taken to enforce absolute secrecy on the questionable practices of the United States' intelligence agencies past, present and future.

As to the White House's prior knowledge of the CIA's hacking of Senate Committee computers, evidence of White House complicity comes from a letter that former Senator Mark Udall (D - Colorado) to president Obama on March 4 protesting the CIA's behavior. In it, Udall wrote: "As you are aware, the CIA has recently taken unprecedented action against the committee in relation to the internal CIA review and I find these actions to be incredibly troubling for the Committee's oversight powers and for our democracy." This declaration that Obama knew of the hacking has not been questioned by the White House. Brennan's readiness to spy on the Senate staff doubtless was encouraged by his having received at least tacit approval from the President. Indeed, he went so far as to tell Senator Feinstein personally, by her testimony, that the surveillance of Committee staff computers will continue.

As to the President's approval of the CIA's "crimes report" to the Attorney General, White House spokesman Carney said that Brennan and Eatinger informed the White House before making the referral. He went on to say that the President has "great confidence" in John Brennan." It is inconceivable that Brennan, however aggressive his manner, would be so rash as to suggest that Senate staffers committed a crime unless he had a green light from the White House and understood that Barack Obama, to whom he was a long-time close advisor, "had his back."

It follows that Obama's statements that he was neutral about the issue are not to be credited.

Conclusion. In respect to all three issues, the CIA under John Brennan's direction did not act as a rogue organization. The removal of the "Panetta" report and other documents from the Senate Committee computers, the hacking of the staff files, and the sending of a "crime report" to the Department of Justice occurred with the knowledge and approval of President Barack Obama.

3.Violation of equal protection of the laws provision

The Obama administration on a number of instances has assumed prerogatives to decide when the law applies and when it does not. This is the third article of indictment. President Obama has taken an oath to uphold the laws of the land. That pledge does not allow him personal discretion as to whom it applies. Yet he has agreed with Attorney General Eric Holder's publicly stated view that he, the Justice Department and the Executive Branch generally have a right to exempt financial institutions from criminal prosecution when they believe that doing so would cause "unacceptable" damage to the national economy.

Eric Holder made this startling confession in testimony before the Senate Judiciary Committee on March 5, 2011. (The Hill March 7) "I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy," Holder said, according to The Hill. Holder's comments don't come as a total surprise. His underlings had already made similar confessions to The New York Times the previous year, after they declined to prosecute HSBC for flagrant, years-long violations of money-laundering laws, out of fear that doing so would hurt the global economy. Lanny Breuer, formerly in charge of doling out the Justice Department's wrist slaps to banks, told Frontline as much in the documentary "The Untouchables" which aired in January 2011.

Let us be clear; Holder is not referring to the interpretation and application of any legal standard. He is referring to a purely subjective standard that has nothing to do with the law.

In a similar vein, it is reported that the Obama administration has instructed the Department of Justice and the FBI to make mortgage fraud its lowest priority and, indeed, to dismiss hundreds of cases without any investigation whatsoever. (Report of the Inspector General, Department of Justice March 11, 2014). It also improperly has diverted funds appropriated for this specific purpose to other areas. This arbitrary exclusion from investigation of the largest category of financial crime has been made in the face of well publicized and solemn undertaking by both President Obama and Attorney General Holder to take bold and expeditious action.

"Equal protection of the laws" is a principle enshrined in the Constitution. There is no allowance for the President or the Attorney General, who serves at the President's pleasure, to establish special classes of persons who are exempt from the laws' stipulations - either to make them immune or to deny them due process. Yet, that is what they explicitly have done.

4. Violation of habeus corpus provisions

President Obama has signed and thereby accepted the constitutionality of legislation that requires him to imprison without legal recourse American citizens here at home who are believed, at the President's discretion, to constitute a danger to the public safety. (National Defense Authorization Act 2011) The charges would be kept secret as would the very fact of their incarceration. The President could and should have vetoed that legislation. He could and should have challenged it in the federal courts. Instead, he gave it his official imprimatur.

5. Abrogating sections of the Constitution

The Trans Pacific Partnership (TPP) signed by President Obama last week with ten other countries is the most radical international agreement the United States ever has attached itself to. There is no precedent; indeed, there is no approximation. For it (1) entails the transfer of entire segments of national sovereignty to panels of multinational arbitrators, and (2) accords business corporations a legal status equal to that of the signatory states. In summary, its central provisions empower private parties to challenge laws and regulations promulgated by governments on the grounds that they in some manner curtail or obviate the privileges and prerogatives of investment institutions written into the 5,400 pages of the TPP treaty.

The obligatory dispute resolution mechanism is the constitution of ad hoc, three person panels which are endowed with final power of judgment. One of the three will be appointed by the plaintiff corporation, one by the defendant state and the third agreed mutually between the two parties. Their decision permits of no appeal. The purview of the panels, as derived from the comprehensive provisions of the treaty, cover inter alia safety regulations, environmental regulations, repatriation of funds rules, alterations in taxes and fees, and legislation/rule that allegedly favors domestic business over foreign business.

The terms of the negotiations, including the positions of the United States, were kept secret from the Congress and the public. Business and financial interests participated directly in the preparation of the United states' proposals and in the negotiations throughout the multi-year negotiations. At the insistence of President Obama, Congress was forced to vote on according the administration fast-track authority that allows him to present the treaty as a package with no amendment possible. Despite immense lobbying pressure from business interests, the resolution that set "fast track" in motion failed in the Senate only to be rescued by some devious maneuvering by the White House. On no previous occasion had the President made anything like the exertions that he did on TPP.

This is the great underreported story of our times. The draft proposals are the most radical move in the direction of an unregulated world market place in history. In effect, states would relinquish a large slice of their sovereign authority to set standards in a variety of areas: environment, working conditions, etc. That authority would not be transferred to a supranational authority a la the European Union but to the market itself whose rules would be applied by a pro-business corps of private persons. In effect, the authority to control would cease to exist.

The issue here is less unconstitutional conduct than the vitiating of the Constitution itself.

The President of the United States has one overarching obligation: to uphold the Constitution and to enforce the laws of the land. That is the oath he swears on Inauguration Day. Failure to meet fully that obligation breaks the contract between him and the citizenry from whom he derives his authority and on whose behalf he acts. The consequence is to jeopardize the well-being of the Republic.

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