Michael Brenner, Et tu–Barack?

Michael Brenner

The previous essay on executive abuse of authority was cast broadly. The few, brief specific examples alluded elected leaders in Washington, their senior appointees and the federal judiciary. Overshadowing all was the culture of criminality and illicit conduct that pervaded the Trump administration. Understandably so since by both example and precedent he encouraged the current, accelerating trend toward unaccountability and impunity. It would be erroneous, though, to focus exclusively on the Trump tenure and its aftermath. His predecessors did much to prepare the ground. 

In this regard, the record of Barack Obama gets little attention. Many see his administrations as interludes of civic integrity. A closer examination of what he actually did, and how he justified it suggests otherwise. Indeed, I believe that there are grounds for making the bold assertion that he committed consequential   acts that were unconstitutional – and might be considered impeachable offenses. Yet, there has been a total absence of any serious discussion of their implications or reflection what they contributed to the sharp fall in the ethical standards of our public life. 

What I judge to be Obama’s illicit actions were not isolated or impulsive. They had design and purpose – for they could alter the structure and practice of government in ways that would endure. They were not underhanded in the Trump mode. They lacked deceit – in fact, carried out in full daylight. With one exception, moreover, they were in nominal conformity with acceptable norms, procedures and standards. In that respect, they were more insidious and a graphic demonstration of what an executive can get away with nowadays in a country and a government where accountability has become an alien concept, where the supposed monitors are either asleep at the screen or intellectually libertine, where the abuse of authority is rife, and where shame and conscience are widely seen as retro concepts. In other words, 21^st Century America. 

This commentary is restricted to public actions taken by Obama while he was in office that represent, I believe, serious abuses of authority, yet have been ignored or elided. Written in 2016, it is unrevised except for a few changes in verb tenses.

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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 asserted 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 claimed 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 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. Awlaki had been a respected orthodox imam in San Diego (and FBI informant) before repeated association with prostitutes lost him credibility in the community and prompted a turn toward Salafism.

The ensuing discussion, such as it has been, was 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.

Anyway, al-Awlaki posed no manifestly imminent, direct threat to the United States. He was as much legend as fact.  The turning point was the botched attempt by that youthful jihadi wannabe, Umar Abdulmutallab, who tried to blow up a plane by torching his underpants in December 2009. Under protracted and intense interrogation while recovering, he stated that he had met Awlaki in Yemen. The story of the Arabian Svengali spread like wildfire. The White House panicked in the face of public fright fanned by the Republicans and the media. Al-Awlaki had become a pebble in Obama’s political shoe – so he eliminated the guy.

Obama’s legal advisers have defended the kill-list initiative by making the argument that the procedures followed in the White House represent constitutional “due process.” What were those procedures? 1) Profiles of candidates are drawn by the Intelligence services. 2) Some were nominated by John Brennan and his staff on an annotated list that he presented to Obama on a weekly basis. 3) Barack Obama personally reviewed the list and ticked the names of those to be eliminated ASAP by any means available to the CIA or Army. In reality, this procedure qualifies as ‘due process” only in comparison to an Idi Amin or Papa Doc Duvalier throwing darts at a  sheet posted on his office wall.

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 . . . .^[5] 

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, at that time John Brennan, is appointed by the President and accountable to him.  On March 10 of 2014, Senator Diane 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 episodes encompass several phases; its main features can be summarized as follows.  In 2009, the Intelligence Committee undertook a review of the CIA’s interrogation methods so as to determine exactly what techniques were used, whether they constituted prohibited torture under American and international law, and the value of the intelligence obtained.  Their task was complicated by the Agency’s willful destruction of video tapes and recordings made at the time those questionable actions were occurring. Upon entering office, President Barack Obama refused to investigate who had ordered and carried out that violation of the law.  At the time, John Brennan was making the transition from a senior executive officer at the CIA to being appointed as Obama’s Homeland Security and Counter Terrorism advisor (after having been considered for appointment as CIA Director).  He previously had been George Tenet’s Chief of Staff.

Independently, a parallel investigation had been undertaken at the CIA involving the Inspector General’s office. The conclusions of the report, known as the “Panetta Report” and completed in 2010, apparently contradicts the official CIA position as to the kind of interrogation methods employed, their value, and the legal authority under which they were conducted.  That is the report which had been requested by the Senate Intelligence Committee – the request repeatedly denied by John Brennan and his predecessors David Petraeus and Michael Morrell.  This obstruction resulted in the delayed release of the Senate’s own report which was completed and scheduled to be officially deposited in December of 2012 with an abridged, sanitized summary to be made public.

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 seems 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 calls “a potential effort to intimidate this staff.”  The formal “crimes report” he filed suggested that Congressional staffers had stolen the “Panetta” review.

Eatinger, who previously had been the Agency’s chief legal adviser, had signed off on the supposed questionable practices that are at the heart of the Senate’s probe.  He was the top lawyer for the CIA’s Detention and Interrogation Unit from mid-2004 until January 2009, when Obama shuttered the CIA’s black sites abroad – and it was Eatinger who counseled that it was legal to destroy the video tapes of what was done at those black sites.  That is why he reportedly is cited 1,600 times in the Committee draft report.  In another incident, Eatinger was among CIA lawyers and officers chastised by a senior federal judge in 2009 for withholding critical information in court proceedings about the status of an Agency operative who was accused of bugging a former federal narcotics agent’s home.

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, though, 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 Senator Mark Udall (D – Colorado) sent 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 was never 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 would 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. The President told reporters that “with respect to the issues that are going back and forth between the Senate committee and the CIA, John Brennan has referred them to the appropriate authorities and they are looking into it.”  (March 11) He went on to distance himself from the matter: “that’s not something that is an appropriate role for me and the White House to wade into at this point.” Against the backdrop of the White House’s previous actions, this is disingenuous. It is vintage Obama casting himself as above the fray when in fact he has been personally involved in controversial decisions.

First, he takes an illegal and/or illiberal initiative – behind the scenes; then when a ruckus erupts it’s the pious “we’re all well-intentioned; let’s try to get along.”  Moreover, the claim that the referral is “appropriate” is itself a defense of the CIA in its campaign to undercut the Senate Committee’s performance of its constitutional function.   In other words, on the constitutional issue the President’s position is that one Department of the Executive Branch, headed by his close colleague and handpicked appointee, will judge the actions of another Executive Agency also headed by handpicked Obama appointee who worked in the White House for four years – those actions having been taken with the President’s prior knowledge and apparent approval.  It also is noteworthy that, independent of the above, President Obama’s team has withheld about 9,400 documents that the Intelligence Committee requested as part of its review of the CIA’s detention and interrogation program.  Since 2009, the White House has ignored or rejected multiple requests from the committee to review the documents. (McClatchy News March 12).

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.                                                 

Some may say that adjudication of the dispute ultimately rests with the Judicial Branch, i.e. the Supreme Court.  That possibility in itself does not resolve the question of the President’s accountability for conduct by an Executive Branch agency that flies in the face of specific legal stipulations and Constitutional principles.  To accept that argument is to say that the President can do whatever he pleases so long as he does not move to prevent a judicial determination.  And, indeed, there is the possibility that the Chief Executive would move to deny the jurisdiction and authority of the Supreme Court on the grounds of Executive privilege as it already has done on several cases involving claims of illegal detention, torture and spying.

The issue of the CIA’s spying on the Senate Intelligence Committee stands out from other abuses by the United States’ Intelligence agencies directed at private citizens and groups insofar as the core Constitutional principle of separation of powers is at stake.   The Executive’s disingenuous legal arguments used to justify mass surveillance and spying cannot apply in this case.  Therefore, the President’s approval of the CIA’s behavior constitutes a defiance of the Constitution itself. 

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  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 didn’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) was the centerpiece of U.S. President Barack Obama’s strategic pivot to Asia and the crowning achievement of the Neo-liberal Project. It was withdrawn by President Donald Trump in 2017, and never acted upon by Congress, amidst mounting public criticism.

The TPP signed by President Obama 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 at first 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 marketplace 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.  For Obama’s TPP bartered away a substantial part of the United States’ sovereign authority.

CONCLUSION 

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.

Successive presidents have violated their oath. The reasons why they have done so are less important than the cumulative, lasting effects. We are discovering that a constitutional democracy can be denatured by means other than revolution or coup. Once again America is proving itself exceptionally innovative. Superficial, nominal continuity of form masking basic alteration in the practices of governance. To paraphrase a hoary proverb: everything must appear to remain the same, so that the essentials can be changed. 

The specific reasons and motivations of the individual actions taken are immaterial to the issue of that violation and broken trust – however noteworthy they may be.  It may be his misconstruing the responsibilities of office; it may be a lack of conviction about anything under the Heavens except his own singularity; it may be an ingrained sense of exceptionalism that transcends formal rules; it may be extreme deference to the powers of the land who awe him. An unnatural reverence for the status quo. It likely is a combination of all these. The necessary element was provided by recent precedents of arbitrary Presidential initiatives, acquiesced in by a degraded political culture, created a conducive environment.