We know now that the Obama administration thinks its lawyers don’t have to get a judge’s approval before a top government official makes the call to assassinate someone. As Holder put it, " 'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security." ...Holder didn’t explain how the administration arrived at the conclusion that due process within the executive branch is enough. He has refused to release the legal memo from the Office of Legal Counsel at the Department of Justice that must lay out how the administration got to here from there—the meat that was missing from his speech. And he didn’t say how the government arrived at the conclusion in September that it was OK to kill not just Anwar al-Awlaki, the radical American cleric in Yemen whom the government says is linked to underwear bomber Umar Abdulmutallab, but also Awlaki's son, Abdul Rahman al-Awlaki, who was also an American citizen.
Emily Bazelon is hardly a right-wing critic of the Obama administration, I might add, and Slate is no Fox News.
I want to draw your attention to one particular point that Ms. Bazelon makes in her piece:
... [I]f the Obama administration claims this kind of extra-judicial power for a few cases, what’s to stop the next president from expanding upon it—and citing this step as precedent for taking others that Obama wouldn’t countenance?
It's really gratifying to see this in print.
This is the point that some of us have been trying to make about the infringement on religious freedom that is inherent in the HHS contraceptive mandate.
I'm not surprised that there are a lot of people who are happy to stick it to the Catholics here in exchange for "free" pills. Oddly enough the same people seem to be fretting about the horrible theocracy that would be a Strawmantorum presidency. So, like, I have to ask -- does it even occur to people that someday, a right-wing Christian might make it into the White House again?
And, while I do not expect that a right-wing Christian president necessarily would stomp all over non-Christians' religious freedoms, I wouldn't be entirely shocked if he or she tried to.
So, wouldn't it make sense not to set the precedent now? Not out of sympathy to Catholics or other anti-choice weirdos, but just out of simple self-preservation, or perhaps.... deference to Constitutional liberties?
+ + +
Let's talk mandate some more, this time the individual mandate. We have the same problem outside the religious sphere, with the rather unprecedented infringement on economic freedom that is inherent in the very idea that the government can force you to buy a commercial product.
This is another thing I don't get. It's extremely hard to resist concluding that Democrats think this is a good idea... because the person in the White House has a "D" after his name.
Okay, maybe they think it is a good idea because they like the thing that the person with the D after his name wants to force people to buy. I can understand that. I like health insurance. I have some. I am happy to have bought it. I think it's a good bet for most people, most likely.
But it's like nobody has ever heard of "precedent."
If this administration can force you to buy one thing, then the next administration can force you to buy another kind of thing.
This is why people need to take a step back and think about the generalities. Democrats want to grab power so they can do certain things that Republicans dislike. Republicans want to grab power so that they can do other things that Democrats dislike. There would seem to be bipartisan interest in preventing executive power-grabbing. And yet, our team colors get so much more attention.
Emily Bazelon, to her credit, noticed. The precedent of executive secrecy that surrounds Holder's claim on the power to perform extrajudicial executions of citizens abroad -- note, this means without trial -- were set during the Bush 43 administration.
[W]hen the executive branch won’t release the legal memos that underlie its decision-making, we’re blocked from evaluating how strong or weak the arguments are. When the federal government takes a bold and new step like this, testing the boundaries of the Constitution, it’s crucial for Holder and his lawyers to explain how and why. Instead, we’re being asked to take the wisdom of the president and his national security apparatus for granted.
That’s a precedent that the Bush administration set in the bad old days of Attorney General John Ashcroft. It was this Department of Justice that produced John Yoo’s legal memos approving waterboarding and other interrogation techniques that amount to torture, the finding that the Guantanamo detainees weren’t prisoners of war protected by the Geneva conventions, and approved of warrantless wiretapping. Yoo’s legal innovations were dizzying—to put it kindly—and the leaking of his memos in 2004 was the first step toward official Department of Justice repudiation of them.
I am a fan of transparency, and also a fan of judicial process, and consequently was no fan of George Bush's foreign policy in this area. I acknowledge that national security needs make for a disturbing gray area both in transparency and in dealing with non-state military actors, but surely some accountability to the nation, through committees of our elected representatives, can be carved out even of our most pressing security needs.
I am not terribly surprised to see Bush's successor following in his footsteps here. Democrats and Republicans may have significantly different ideas about how best to command a military, manage an economy, and lead the nation, but it is pretty obvious that politicians of all stripes never saw a power they didn't want to grab and hang onto for dear life.