That is why it pains me to say that his blog entry dated January 4, 2012—his most recent at the time I write this—ignores history and represents the worst of the writing associated with sociology and the other “fuzzy” sciences. I write this as one whose undergraduate comprehensive major was social science education, which included required a minimum of 45 hours of history, sociology, political science, and economics courses.
The blog entry, entitled “Obama Is Doing Something Wrong in Fighting Terrorists ,” caught my attention because on that point, the Professor and I agree. After reading the entire piece, however,I must say that that is the only thing on which we agree, at least on this topic.
His complaints are purely those of the left wing of his party, a group which apparently believes that the political world is rational and susceptible to reasoned argument. He writes
On his first day in office, President Obama promised to close the Guantanamo prison within a year. He did not.
Last year he ordered the killing of a U.S. citizen, Anwar Awlaki, by a drone attack in Yemen.
Last week he signed the defense bill which allows the indefinite detention without trial of suspected terrorists.
Each of these acts is wrong in itself and dangerous as a precedent.
To which I respond, “Whoa, there, Cowboy.”
The view from the ivory tower of the academy is, in my experience, often suspect, but in this instance, the three examples cited are just plain wrong. Those of us who spent large parts of our adult lives and professional careers facing down the enemies of our Republic have an entirely different view of life.
To his credit, he also writes
I normally support President Obama, so I have tried hard to understand why he did these things, and what principle or theory might lie behind them. I have not come up with a good account. National security, especially when dealing with terrorists, necessarily includes facts that can't be revealed to the public. Perhaps there are good reasons for these acts that are now hidden.
Here are my best guesses.
Let’s look at his complaints and his “guesses.” Guess No. 1 says
Some of the Guantanamo prisoners were so badly tortured under the previous administration that they cannot effectively be put on trial or released. Since their testimony was acquired by torture, it is worthless. The Obama administration ended the torture, but cannot undue what was done before.
As pleasing as it may be to the left-wing base of the Democratic Party to blame everything wrong with the world on former President Bush, they ignore the fact that we are dealing with fanatics who have no respect for Western history and culture. They are people who would, if given half a chance, eliminate the left as the first order of business. After all, the left espouses the very things that the fanatics hate the most—freedom of thought and expression, personal liberty, and freedom to worship, or not worship, as one pleases.
I also doubt that any of the Gitmo prisoners was “tortured” so badly that they cannot be exposed to examination. I do not often disagree with Senator John McCain, who really was tortured by the North Vietnamese and their imported Cuban torturer, but waterboarding is not torture. It is extremely unpleasant, terrifying even, but after it is over, the subject does not need to reduce dislocated joints or set broken bones.
No, these are just bad guys who need to be isolated from the world. Sam Yorty was once asked if he thought the death penalty deterred murder.
“No,” he replied. “You don’t kill a rabid dog to deter other dogs from getting rabies. You kill him so he doesn’t bite anybody.”
In the case of Gitmo, we have locked up a bunch of people whose dearest goal in life is to kill as many Americans as possible. The President—in fact, our constitutional system—acknowledges that the first order of business of any government is to “provide for the common defense” of its people. I remember seeing President-elect Obama coming out of his first full-fledged national security briefing a day or so after the election. He had a deer in the headlights sort of look. I “guess” he was thinking, “Damn! They weren’t kidding. It is a dangerous out there. Maybe Gitmo is not so bad after all.”
Then there is Guess No. 2:
A very small number of American citizens, such as Awlaki, have indeed become enemy combatants. Awlaki himself openly proclaimed this. Since he was in hiding in enemy territory, it was not practical to capture and try him as a citizen has a right to receive. The drone attack was the only practical way to fight that enemy, as we have with many other non-citizen enemy individuals.
On this we agree, but I do not see this as anything to apologize for. Awlaki was a leader of a confederation of sorts who openly declared war on his own country. Abraham Lincoln led our country in our bloodiest war against people who he always claimed to be citizens of the United States. We specifically targeted Admiral Yamamoto in WWII, because if he was dead, the Japanese cause suffered. The same goes for Awlaki and anyone else who takes up arms against the United States.
As the Professor acknowledges by implication, all Awlaki had to do to avail himself of his rights of citizenship was to submit himself to its judicial process. He did not. To quote the old Crusader in Indiana Jones and the Last Crusade, “He chose poorly.”
Then there is Guess No. 3:
When signing the National Defense Authorization Act, the president issued a statement that he objected to the provisions of the act that allowed for indefinite military detention and would not allow them on his watch. His opponents put this poison pill in the law precisely to embarrass the president. Since he had to sign the law in order to pay the troops, he accepted this compromise, while still rejecting this provision of the law.
This guess places me in a quandary. I like signing statements. They have lengthy historical precedent dating back to the earliest days of the Republic. See, Presidential Signing Statements: Constitutional and Institutional Implications, at 1. (Congressional Research Service, September 17, 2007) [“Presidential signing statements are official pronouncements issued by the President contemporaneously to the signing of a bill into law that, in addition to commenting on the law generally, have been used to forward the President’s interpretation of the statutory language; to assert constitutional objections to the provisions contained therein; and, concordantly, to announce that the provisions of the law will be administered in a manner that comports with the Administration’s conception of the President’s constitutional prerogatives. While the history of presidential issuance of signing statements dates to the early 19th century, the practice has become the source of significant controversy in the modern era as Presidents have increasingly employed the statements to assert constitutional and legal objections to congressional enactments.” Id.]
By far, the most prolific user of such statements since 1980 has been President Clinton who issued 381 statements, two and one-half times as many as President George W. Bush. During his presidential campaign, candidate Obama rejected the use of signing statements. He was asked at one rally: "when congress offers you a bill, do you promise not to use presidential signing statements to get your way?" Obama gave a one-word reply: "Yes." He added that "we aren't going to use signing statements as a way to do an end run around Congress." A month and a half after taking office, President Obama issued his first signing statement.
As a proponent of checks and balances, I take the position that Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) has been misinterpreted since it was decided. In Marbury, the Court held that it has the power to declare a law enacted by Congress and signed by the President to be, nonetheless, unconstitutional. Such a right is nowhere mentioned in the Constitution, but neither has the decision been seriously doubted, at least in the past 150 years.
What has been ignored is that the three branches of the national government are co-equal. Even the Court acknowledges that by means of the presumption of constitutionality of every federal law that comes before it.
I tend to side with President Jackson, in his view that the President has an equal right to disagree with the Congress and the Supreme Court and to ignore their decisions on constitutional grounds, albeit at the peril of impeachment. In Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832 (1832), the Court ruled that Georgia, which was in the process of evicting the Cherokee Nation from lands within Georgia’s borders, could not impose laws in Cherokee territory, since only the national government — not state governments — had authority in Indian affairs. President Jackson had no desire to get mixed up in that issue and, famously, said “John Marshall has made his decision; now let him enforce it! ... Build a fire under them. When it gets hot enough, they'll go.”
My real objection to Guess No. 3 is Professor Weston’s assumption that “[h]is opponents put this poison pill [the indefinite military detention provision] in the law precisely to embarrass the president.”
I suggest that it was Congress exercising its Constitutional authority to make laws. (Putting the President in a tough political position was just a side benefit.)
The President’s Attorney General has made no attempt to hide his desire for a high profile trial for terrorist leaders—one that, as a former prosecutor, I know lurks in the heart of every district attorney. This is understandable from a bureaucratic turf war perspective. It is inexcusable from the perspective of national defense. In this case, Congress exercised its right to curtail over-reaching by the executive branch and the President has exercised his right to disagree. Now we must wait to see what, if anything he will do to follow up on his signing statement.
In summing up, Dr. Weston makes the usual mistake that idealists make in stating their view of the world. He assumes, as do college kids arrested for drug offenses in a harsh Orient, that the Constitution is applied and approved of world-wide. He says
. . . I believe that President Obama has not done enough to fight these enemy individuals and organizations in a way that is in accord with American constitutional principles. This is my biggest disappointment with the Obama administration.
Our enemies will use any weapon that they can in their single-minded hatred for America. If they can use our own Constitution against us, all the better. The very rights that they and their supporters—both active and benign—claim for themselves, they deny to us and their other enemies.
As I said earlier, it is nice up there in the ivory tower. It’s a lot messier in the real world, and Beau Weston is an intelligent observer. He ought to know better.