In his effort to appear on as many morning and late night shows before Election Day, President Barack Obama appeared on “The Daily Show” with Jon Stewart last night. Stewart talked to him about his record, his first debate performance, whether his candidacy’s strength is that he is not as bad as GOP presidential candidate Mitt Romney, what he would like to do in his second term and his administration’s response to the attack in Benghazi. He was also directly asked about the continuation of national security policies that were the hallmark of the administration of President George W. Bush.
The fact that Stewart asked this question was remarkable, simply because at no point during the first or second presidential debates has either of the moderators asked anything like this question. It was not something Obama appeared to be prepared to answer. In fact, he did not really answer it at all.
In the second part of the interview, Stewart said to Obama, “Here’s a little game that I like to call, “Still or No?” Before when you ran, you had things you thought. I wonder if four years as president has in any way changed that. Ok, first one is we don’t have to trade our values and ideals for our security.” Obama answered, “We don’t.” Stewart quickly followed up, “Do you still feel that way?”
OBAMA: We don’t. There’s some things that we haven’t gotten done. I still want to close Guantanamo. We haven’t been able to get that through Congress. (applause) One of the things we got to do is put a legal architecture in place and we need congressional help to do that, to make sure that not only am I reined in but any president is reined in terms of some of the decisions that we’re making.
Now, there are some tough trade-offs. I mean, there are times where there are bad folks somewhere on the other side of the world and you got to make a call and it’s not optimal. But, when you look at our track record, what we’ve been able to do is to say we ended the war in Iraq. We’re winding down the war in Afghanistan. We’ve gone after Al Qaeda and its leadership. It’s true that Al Qaeda is still active, at least sort of remnants of it are staging in northern Africa and the Middle East and sometimes you’ve got to make some tough calls, but you can do that in a way that’s consistent with international law and American law.
Having broached the topic of national security policies in a general way, Stewart became specific:
STEWART: Within that, as it ratchets down, I think people have been surprised to see the strength of the Bush era warrantless wiretapping laws and those types of things not also be lessened—That the structures he put in place that people might have thought were government overreach and maybe they had a mind you would tone down, you haven’t.
OBAMA: The truth is we have modified them and built a legal structure and safeguards in place that weren’t there before on a whole range issues. Now, they’re not sexy issues. They’re not the kinds of things that you’re going to—
STEWART: You don’t know what I find sexy. [laughter]
OBAMA: Let me put it this way. I saw you flash that “Shades of Gray” thing so I know what you were reading. We’re not going to go there. I’m still the president. [laughter/applause]
STEWART: I understand. I respect the position greatly.
Obama noticed the lower-thirds read “50 Shades of Surveillance.” In the middle of his pathetic answer, he stopped his thought and latched on to a joke from Stewart to then sportively suggest he would not be sharing what he thinks about what is sexy while he is president.
Let’s go through some of his remarks.
First, on the issue of modifying the warrantless wiretapping policy and putting safeguards in place, what really happened was reported in April 2009. As Keith Olbermann reported on MSNBC, President Obama’s Justice Department decided to defend “Bush officials from lawsuits surrounding National Security Agency domestic spying.” The administration also decided to “expand the government’s authority by making it immune from any legal challenge regarding wiretapping — ever.”
In the case of Jewel vs. NSA, involving “five plaintiffs who contend that AT&T illegally transmitted information about their phone habits to the NSA,” the Justice Department claimed the “state secrets privilege.” The Justice Department also argued the government had “sovereign immunity” and could “only be sued if the wiretaps involved willful disclosure.” Also, the Obama administration refused to confirm or deny “publicly confirmed facts” and asserted, “Attempting to demonstrate that the TSP was not the content dragnet the plaintiffs allege, or that the NSA has not otherwise engaged in the alleged content dragnet, would require the disclosure of highly classified NSA intelligence sources and methods about the TSP and other NSA activities.” So, the Obama administration believed it should not have to demonstrate citizens’ rights were not being violated.
Of course, Obama voted for the FISA Amendments Act in 2008 when he was running for president. The Electronic Frontier Foundation’s Trevor Timm detailed in an overview how the Obama administration has sought to prevent courts from assessing whether the NSA’s wiretapping program violates the law or not. In the post, he wrote, “[Obama] reneged on his promise to filibuster telecom immunity in the FISA Amendments Act in the midst of a presidential race. As a candidate, he also promised to curtail the use of the “state secret” privilege, only to turn around and claim it in all of the wiretapping cases —along with many other lawsuits alleging constitutional violations.”
Each invocation of the state secrets privilege has been aimed at blocking accountability or efforts to “jam” him on national security. He has had much contempt for the ACLU and other organizations, which have pushed cases challenging the constitutionality of national security policies. So, when he says, these are not “sexy issues” and tries to find a way out of giving an answer, it is because he knows his administration has totally folded and been submissive to the national security state. What head officials in the intelligence community have wanted they have been able to get.
Secondly, this comment on taking out “remnants” of Al Qaeda in northern Africa and the Middle East in a manner “consistent with international law and American law” is deceitful if not an outright pathological lie.
From a report produced by clinics at New York University and Stanford University:
…Legal experts, including the current U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, have questioned whether “killings carried out in 2012 can be justified as in response to [events] in 2001,” noting that “some states seem to want to invent new laws to justify new practices.” “Anticipatory” self-defense has been offered as a narrow exception, invoked to prevent an attack that is “instant, overwhelming, and leaving no choice of means, and no moment of deliberation.” There is little publicly available evidence to support a claim that each of the US targeted killings in northwest Pakistan meets these standards. Indeed, on currently available evidence, known practices–such as signature strikes, and placing individuals on kill lists for extended periods of time–raise significant questions about how the self-defense test is satisfied… [emphasis added]
This is just one example. The report also states, “International law requires states to ensure basic transparency and accountability for wrongs. States must investigate war crimes allegations, and prosecute where appropriate.” War crimes are being committed every time the administration engages in “double tap” drone attacks where rescuers or humanitarians are targeted as they try to help those injured in attacks. War crimes are also being committed when funerals, weddings or tribal council meetings are targeted and civilians are killed. So, Obama does not even begin to abide by international law when he oversees a program like this does not merely execute “bad folk.”
Moreover, so much of the drone program is kept secret, including legal memos, that it is in some ways tough to discern whether international law or even domestic law is being followed. The public takes Obama at his word. In the same way that he expects people all over the world to trust him when he decides to order the execution of someone by a drone in Pakistan, Yemen or Somalia, etc, he expects citizens of the world to just trust this all abides by international law and domestic law because the administration made some speeches and drew up a few secret legal memos it does not want anyone outside the administration to read.
Finally, there is this comment, which is so deplorable that it should make one laugh. : “One of the things we got to do is put a legal architecture in place and we need congressional help to do that, to make sure that not only am I reined in but any president is reined in terms of some of the decisions that we’re making.” Like, the Constitution?
This is the country’s “legal architecture” for reining in abuses of power. It is a system of checks and balances. Ideally, the Legislative Branch and Judicial Branch are supposed to “rein” in presidents by passing laws and conducting oversight. The courts are supposed to hear challenges to law and decide whether they are constitutional or not. If they are not constitutional, they are to be thrown out. The Legislative Branch and Executive Branch have to go write whatever law violated the Constitution or rights of citizens again. The only problem is the Obama administration has fought against the system of checks and balances by invoking state secrets privilege and shielding officials and telecom companies from accountability for engaging in warrantless wiretapping, which is a felony.
There does not need to be a new “legal architecture” developed between Congress and whomever is in his administration if he is re-elected to a second term. Any “architecture” constructed will be as dysfunctional as the second-class justice system of military tribunals set up for Guantanamo prisoners accused of terrorism. It will be like the “kill list” committee setup for drone executions that is bound by no judicial process.
The United States—though constitutional scholar President Obama appears to be oblivious—has a framework for preventing the concentration of too much power in one part of government or in the hands of a president. But, in order for it to work, one has to hold people accountable for committing crimes. When people in power commit felonies or violate the rights of citizens or lie and send people to wars by lying or engage in maneuvers that effectively redistribute wealth from those in the 99% to the richest 1%, there needs to be hearings in Congress, truth commissions, investigations, trials and sentences for crooks responsible.
Especially in this system where the security industrial-complex has such immense power, political capital has to be expended on policies that produce great injustice in order to end them. Obama never expended political capital to bring about the closure of the Guantanamo Bay prison. That is why it remains open today.
A president cannot operate with a creed of moving forward instead of looking back and expect society to not further descend into a state of lawlessness and corruption. And, to go on cable television and appear so naive is not only preposterous. It is negligent. It is to reveal that, as president, one is so captive to the system that the best one can offer for solving the deepest problems in society is a fickle solution that might typically be nonchalantly offered while having drinks in a bar or restaurant.