Confusion at the Top: Does the Obama Administration Even Understand the Constitution-Or the Bill of Rights-When It Comes to Executive Power and the War on Terror?

By Mukasey, Michael | USA TODAY, January 2012 | Go to article overview
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Confusion at the Top: Does the Obama Administration Even Understand the Constitution-Or the Bill of Rights-When It Comes to Executive Power and the War on Terror?


Mukasey, Michael, USA TODAY


PRES. BARACK OBAMA campaigned for office largely on the claim that his predecessor had shredded the Constitution. By the Constitution, he could not have meant the document signed on Sept. 17, 1787. Article II of that parchment begins with a simple declaration: "The executive Power shall be vested in a President of the United States of America." Not "some" or "most" or even "all but a teeny-weeny bit" of the executive power. The president is vested with all of it. This particularly is noteworthy when compared with the enumerated legislative powers vested in Congress: "All legislative Powers herein granted." The Founders understood, based in part on their unfortunate experience under the Articles of Confederation, that the branch of government most likely to be in need of the ability to act quickly and decisively is the executive. The branch most likely to overreach is the legislature.

Perhaps, then, candidate Obama was thinking of the Bill of Rights in claiming that Pres. George W. Bush shredded the Constitution, but leaving that question aside for now, let us consider how Pres. Obama has fared in undoing the Bush policies he opposed. He began dramatically in January 2009 by issuing a series of executive orders. According to one, Guantanamo Bay detention camp was to be closed within a year. Even though the principal planner of Sept. 11, Khalid Sheikh Mohammed, or KSM, had announced that he would plead guilty before a military tribunal at Guantanamo, the Justice Department announced in November 2009 that the military commission was cancelled. Instead, KSM would be brought to the mainland U.S. to stand trial. In response, Congress passed a statute, relying on its constitutionally-enumerated power of the purse, directing that no Federal funds be used to bring any detainee from Guantanamo to the U.S. As a result' the Guantanarno military commission trial for KSM and other detainees charged in connection with Sept. 11 is back on.

Another executive order in January 2009 suspended the CIA interrogation program. Instead of these allegedly disgraceful and unconstitutional interrogation techniques, it was announced that anyone acting on behalf of the U.S. government, even a highly trained CIA operative seeking sensitive security-related information, is limited by the Army Field Manual. This manual--because it was drafted for general use--is pitched to the capabilities of the most junior recruit in the field interrogating someone he has just captured. In fact, it has been available on the Internet for years and has been used by terrorists as a training manual for resisting interrogation.

The abandoned CIA program involved--in what probably is the most disastrous marketing term since New Coke--"enhanced interrogation" methods which were, in fact, completely lawful. When detainees were subjected to them--detainees knowledgeable of Al Qaeda and resistant to lesser techniques--we learned a great deal. Three of them--Abu Zubaydah, Khalid Sheikh Mohammed, and Abdel Rahim al Nashiri--gave up a huge trove of valuable information. Not only did KSM disclose general information on how Al Qaeda moved money and people, but specific information that helped disrupt other plots. One involved airplanes attacking the Los Angeles (Calif.) Library Tower. It was to be carried out by a South Asian group headed by a man named Hambali. Other information resulted in the capture of people involved in a plan to develop a biological weapons capability in the U.S. The list goes on.

[ILLUSTRATION OMITTED]

Not only has this interrogation program been abandoned, when people today are apprehended in connection with terrorist plots directed at this country--and there have been more than 20 since Sept. 11--most immediately are turned over to law enforcement authorities, informed of their Miranda rights, and treated as routine criminal suspects.

What do we lose in this process? With the would-be Christmas Day bomber Umar Farouk Abdulmutallab, we lost the chance at information about who had built his explosive device.

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