FEIN: The more things change

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By Bruce Fein

COMMENTARY:

President Barack Obama's campaign theme should have been, "The more things change, the more they stay the same."

The personality-driven media has juxtaposed Mr. Obama's pledge to clean the nation's Augean Stables of rich lobbyists and insiders who profited on special access to the corridors of power; and, his appointments or nominations of delinquent taxpayers to his Cabinet (with jurisdiction over the Internal Revenue Service), and appointment of a mega-lobbyist for a defense contractor as deputy secretary of defense.

But Mr. Obama's more alarming betrayal concerns the imperial powers of his office, which he inherited from the Bush-Cheney duumvirate. He has either embraced or acquiesced in every one of their usurpations or abuses (some perpetrated with congressional collaboration).

Then-Sen. Obama had assailed the Bush-Cheney invocation of the non-constitutional state secrets privilege to block litigation by victims of egregious constitutional violations seeking damages from the wrongdoers. The case of Binyam Mohammed, an Ethiopian native, is exemplary. He sued a subsidiary of Boeing for arranging flights to execute the Bush-Cheney "extraordinary rendition" program. It entails kidnapping terrorism suspects based on the president's say-so alone and transporting them to other countries for torture. Mr. Mohammed alleged that after his kidnap and transport to Morocco, "he was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution and death." United States laws make torture a criminal offense irrespective of the nationality of the violator or the place of the crime.

Last week before the United States Court of Appeals for the Ninth Circuit, President Obama echoed the position of Bush-Cheney that the state secrets privilege required dismissal of Mr. Mohammed's suit. In other words, individual constitutional rights of the highest order should be sacrificed on the altar of national security. At the same time, Mr. Obama was deciding to defend the arch-defender of torture, former Deputy Assistant Attorney General John Yoo, from a suit brought by Jose Padilla. The complaint alleges that Mr. Yoo concocted the legal justification for detaining and harshly interrogating Padilla as an "enemy combatant" without accusation or trial. (The United States later recanted its enemy combatant allegation).

Mr. Obama invoked the state secrets privilege a second time last week to block litigation challenging the legality of the Bush-Cheney "Terrorist Surveillance Program" (TSP) that he had assailed as a senator. For five years, the TSP targeted American citizens on American soil for electronic surveillance on the president's say-so alone to gather foreign intelligence in contravention of the warrant requirement of the Foreign Intelligence Surveillance Act (FISA). Intentional violations are federal felonies.

Candidate Obama faulted the Bush-Cheney reign for tolerating or encouraging lawlessness. The president is obliged under the Constitution to take care that the laws are faithfully executed. Waterboarding has been prosecuted as torture since the Spanish-American War of 1898. Former Republican Secretary of Homeland Security Tom Ridge concurs that waterboarding is torture. Ditto for Attorney General Eric H. Holder. Former President Bush and Vice President Cheney have acknowledged their authorization for waterboarding at least three detainees. The United States torture prohibition makes no exceptions for times of war (although mistake of law is a defense). Mr. Obama, however, has virtually renounced faithfully enforcing the laws against torture (and the criminal prohibitions of FISA and kidnapping) as regards the former president and vice president. Mr. Obama's inaction is tantamount to a pardon, but which uncourageously evades the political accountability that President Gerald Ford accepted for pardoning former President Richard M. Nixon. Pardons, moreover, require the recipient's concession of criminal culpability, and prevent the violations from becoming legal precedents that would lie around like loaded weapons ready for use by any White House successor who claims an urgent need.

Then-Sen. Obama descried the Bush-Cheney invocation of executive privilege to prevent former White House officials Karl Rove and Harriet Miers from even responding to congressional subpoenas for testimony about the firings of nine United States attorneys. That extravagant and unprecedented claim would have enabled President Nixon to muzzle his Watergate nemesis, former White House counsel John Dean, from testifying before the Senate Watergate Committee about Oval Office conversations implicating the president in obstruction of justice. Mr. Obama, however, is now hedging over whether to defend Mr. Rove's non-responsiveness to a new congressional subpoena.

President Obama has left undisturbed the bulwark of other Bush-Cheney usurpations or constitutional excesses: the Military Commissions Act of 2006; the Foreign Intelligence Surveillance Act Amendments Act of 2008, which eviscerates the Fourth Amendment; the Status of Forces Agreement with Iraq concluded by Bush-Cheney as an executive agreement (despite its placement of U.S. troops under foreign command) to evade Senate scrutiny as a treaty requiring a two-thirds majority; and, President Bush's hundreds of signing statements.

If the American people and Congress do not wake up from their Obama infatuation, presidential powers will soon be indistinguishable from King George III's that provoked the 1776 Declaration of Independence.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates, Inc., and author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy."