Obama's Disappointing Record on National Security Law

As the blogosphere remains abuzz over Sarah Palin's latest burst of political thunder, progressives are rightfully seething over the Cheney-esque attacks that she leveled against President Obama's national security policy during her keynote address to the Tea Party Convention in Nashville, Tennessee.

Resorting to the same crass and ideologically-driven language that so often filled her 2008 campaign speeches, Palin censured the Obama administration for its handling of the constitutional issues associated with the war on terrorism, declaring that in order to "win the war [on terrorism], we need a commander in chief, not a professor of law." Palin's poignant critique came in reference to her complaint that President Obama offered constitutional protections to Umar Farouk Abdulmutallab, the Christmas Day underwear bomber.

In directly undermining President Obama's status as commander-in-chief, as well as renewing the tired Republican logic that civil liberties are necessarily antithetical to our national security, Palin's criticisms are certainly regrettable (Note: even conservative Fox News host Brian Kilmeade conceded that Palin showed disrespect for Obama's presidential authority). But, Palin's remarks are even more misplaced because of the regrettable extent to which President Obama has actually often failed to follow through on his all-important campaign pledge to restore and uphold the rule of law in the war against terrorism.

If only Obama were acting more like a professor of domestic and international law.

One wonders how the civilian victims of Obama's ever-expanding use of targeted assassinations and drone attacks inside Pakistan, the Arab-American citizens now subject to expansive racial profiling and invasive security checks at America's airports, or the families of the victims of Blackwater's Nisour Square massacre who have yet to see Obama hold private military contractors operating in Iraq, Afghanistan, and Pakistan accountable to the law, might react to Palin's latest statements.

Obama has hardly been a voice of progressive change on issues of national security law, and many human rights groups and civil liberties lawyers are fuming over his failure to embark upon a more wholesale departure from the Bush administration's handling of the rule of law in the "War on Terror".

At times, the two administrations have seemed indistinguishable. A quick review of the headlines from just the past two weeks reveal the extent to which the Obama and Bush national security policies bear striking resemblance:

- In a shocking admission bound to generate continued controversy in the coming weeks, Obama's Director of National Intelligence, Dennis Blair, acknowledged in a congressional hearing last week that the President has the executive authority to authorize the assassination of U.S. citizens who are suspected of being involved in terrorism abroad.  Renewing a policy that President Bush championed in the aftermath of 9/11, Obama has apparently personally authored a "hit list" of American citizens living abroad for the CIA to hunt down and kill. Never mind that this extra-judicial execution of U.S. citizens could very well violate both international human rights law and the Fifth Amendment of the U.S. constitution.

- As I have extensively documented elsewhere, the U.S. Special Operations Forces is now operating a network of secret detention sites throughout Afghanistan where prisoners are being aggressively interrogated and possibly even tortured. Much like the horrific scenes from Guantanamo Bay, Afghan detainees are being held underground for weeks on end, without access to the International Committee of the Red Cross or legal counsel.

- Obama's Justice Department has recently determined that nearly 50 of the remaining 196 detainees being held at Guantanamo Bay will be imprisoned there indefinitely, without access to trial. Considering these prisoners too dangerous to release, but unwilling to put the detainees on trial (largely because the government lacks the requisite evidence to convict), the Obama administration has continued Bush's reliance on indefinite detention, a practice that human rights advocates have deemed unconstitutional.

- According to Newsweek, the Obama administration is set to exonerate senior Bush administration lawyers who were instrumental in authorizing and implementing torture at Guantanamo Bay. In a report set to be released later this year, the Office of Professional Responsibility (OPR) will clear both John Yoo and Jay Bybee -- the two Bush lawyers who drafted an August 2002 legal opinion that authorized CIA officers to use brutal methods when interrogating detainees -- of all misconduct. Evidently, Obama has no intention of faithfully upholding the Convention Against Torture and the Geneva Conventions, when it comes to prosecuting past crimes from the Bush era.

These are surely not the progressive policies one might have expected from a former distinguished liberal law professor who pledged to restore the rule of law in America's fight against al Qaeda upon taking office.

Palin's critiques get to the crux of the problem plaguing Obama throughout his first year in office: so eager to walk both sides of the political aisle and appeal to liberals and conservatives alike, he has alienated his progressive base, at times caving on the very key issues which had mobilized voters on the left to support the president throughout his 2008 presidential campaign.

There have been some encouraging signs: Obama's renunciation of secret CIA prisons and his decision to ban torture, along with his pledge to close Guantanamo Bay and his determination to try Khalid Sheikh Mohammed in civilian courts, all represent positive steps in his quest to square the rule of law with America's national security policy.  But, in his tireless effort to gain bipartisan support and walk the political center, he has too often been willing to sacrifice civil liberties and discard international law in trying to protect American lives.

As the 2010 mid-term election season rapidly approaches, Palin's comments are sure to reignite the Republican flame over Obama's national security policy and revive conservative critiques that the Democrats are soft on terrorism. If Obama bows to this partisan political pressure, however, his presidency will be remembered not for the "hopey-changey thing," in the words of Palin herself, but for his inability to take a firmer stand and distance himself from Bush administration policies on key areas of national security law.

Obama has made it abundantly clear that he will not follow Britain's lead by launching an investigation of former Bush administration officials for possible war crimes in the lead-up to the 2003 Iraq War. Disappointing as this stance may be to his progressive base, if Obama is to move forward and uphold the rule of law in the ongoing fight against terrorism, he must disregard Palin and simultaneously serve as both a commander-in-chief AND a professor of the law.

Photo credit: Shallow Nation