President Obama Faces Legal Black Holes

Nat Hentoff

“The Constitution of the United States is not a mere lawyers’ document,” said Woodrow Wil­son before becoming president of the United States. “It is a vehicle of life, and its spirit is always the spir it of the age.” During the First World War, the spirit on the home front was fear, and President Wilson practically abolished the First Amendment.

As I write in the afterglow of the November 2008 election, the spirit in the United States is self-congratulatory, and not only among black Americans; we have brightened our image in much of the world. But meanwhile, a British court is considering issuing arrest warrants for Central Intelligence Agency operatives who kidnapped a British resident in a “rendition” to be tortured in Morocco and Afghanistan. And an Italian prosecutor has actually ordered arrest warrants for twenty-five CIA agents involved in another “rendition.”

Throughout the long presidential campaign, Barack Obama hardly mentioned the CIA and the extralegal powers given it by George W. Bush in that administration’s conviction that in the age of terror, the commander in chief has “the inherent constitutional authority” to be the law.

When Joe Biden was running for president, he often condemned Bush’s contempt for the constitutional separation of powers, adding that “by spying on American citizens and detaining individuals without access to courts, he has undermined our national values.”

Biden was silent on these matters once chosen as the candidate for vice president, except for an angry comment during his debate with Sarah Palin on Bush and Vice President Dick Cheney’s “dangerous actions to aggrandize the power of a unitary executive.” Through­out the campaign, Obama sidestepped making such accusations.

Obama supporters kept telling me that raising the issue of the Bush regime’s crimes against international law and our own statutes might lend credence to the McCain team’s charges that the “inexperienced” Obama would be weak on dealing with Al Qaeda and its counterparts. Remember, these are enemies whom Bush’s director of National Intelligence, Michael McCon­nell, insisted would be “very lethal” for the next twenty years. Once Obama is president, I was assured, he will be (within the limits of law) a forceful commander in chief.

I’ve heard that song before in Ameri­can politics; but if Obama—after first taking steps to address the economy—does begin to probe deeply into the criminal legacy Bush has be­queathed him, he will be confronted by what Jonathan Mahler described as “a vast infrastructure for electronic surveillance, secret sites for detention and interrogation, and a sheaf of legal opinions [some of them still classified] empowering the executive to do whatever he feels necessary to protect the country.”*

Mahler, author of the recent and invaluable book, The Challenge: Ham­dan v. Rumsfeld and the Fight Over Pres­idential Power (W.W. Norton, 2008)—an inside look at the machinations in Bush’s administration that reminded me of Charles Dickens’s Bleak House—adds: “The new administration will also be the beneficiary of Congress’s . . . history of complacency, which amounts to a tacit acceptance of the Bush administration’s expansive views of executive authority.”

The Democratic congressional leaders, Harry Reid and Nancy Pelosi, have been largely indifferent to America’s precipitous transmogrification into a surveillance society, let alone the full implications of the CIA’s “black sites” and torture network. Even in the last months of Bush suzerainty, when Attor­ney General Michael Mukasey and Federal Bureau of Investigation Direc­tor Robert Mueller allowed warrantless investigations of Americans without a shred of links to terrorism, bringing the FBI back to the glory days of J. Edgar Hoover, there was no outrage from Pelosi and Reid.

Vermont Senator Patrick Leahy, Demo­cratic chairman of the Senate Judiciary Committee—who would have been my preferred candidate for president—has ceaselessly and passionately struggled to explore all these black holes, but he does not have the power to set the agenda for the Democratic majority.

And, of course, an unknown number of Bush-era legal black holes remain hidden, even from Senator Leahy—and the citizenry. President Obama obviously will need to know the minefields in our twisted rule of law if he is to bring back the Bill of Rights and the rest of the Constitution. That would require a far more sweeping series of congres­sional investigations, with subpoena power, than the president-elect has yet hinted at.

Already, for one needed example, Democratic senators Russ Feingold (Wisconsin) and Sheldon Whitehouse (Rhode Island) introduced legislation in the last Congress to cope with one form of “secret law”: the unprecedented number of Bush “signing statements” by which, after signing a bill into law, he declared he would not enforce it.

We don’t know how many of those signing statements have escaped public notice, despite the probing work of reporter Charlie Savage, who just won a Pulitzer Prize for his extensive detective work. The Feingold-Whitehouse bill called for more far-reaching public notice of those executive three-card-monte games. It should be reintroduced.

Nor do we know in any detail what legislation President Obama will propose to rein in any administration’s use of the “state secrets” doctrine—which permits the Justice Department to shut down an initial court hearing of any case before testimony is heard on the grounds that “state secrets” are involved.

The American Civil Liberties Union, in an eighty-four-page list of specific “Actions for Restoring America,” urged the new president to use his first one hundred days to take actions including the following: “Direct the attorney general and other relevant agency heads (e.g., Defense and Homeland Security) to end government monitoring of political activists [in the name of free inquiry]. . . . Cease and prohibit the use of torture and abuse, without exception, and direct the attorney general immediately after his or her confirmation to appoint an outside special counsel to investigate and, if warranted, prosecute any violations of federal criminal laws prohibiting torture and abuse.”

I write this before Barack Obama takes the oath of office. When he does, you might want to check whether in the hundred or more days thereafter he begins seriously and persistently to implement Justice Louis Brandeis’s insistence that “sunlight is the best disinfectant” as he begins to discover and disable lurking lawlessness in the legal black holes.

In the letters section of the January 3, 2008, New York Times, Arthur Gunther of Blauvelt, New York, offered a quintessential challenge to Bush’s successor: “Mr. Bush and Mr. Cheney have so deeply embedded tacit approval for illegal acts in government agencies that wrongdoing by their philosophical sympathizers will continue in shadow operations for years to come.”

But shadows can be dissolved, Pres­ident Obama.

Nat Hentoff

Nat Hentoff is a United Media syndicated columnist, a senior fellow at the Cato Institute, and the author of, among other books Living the Bill of Rights (University of California Press, 1999) and The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2004). His latest book is At the Jazz Band Ball: Sixty Years on the Jazz Scene (University of California Press, 2010).


“The Constitution of the United States is not a mere lawyers’ document,” said Woodrow Wil­son before becoming president of the United States. “It is a vehicle of life, and its spirit is always the spir it of the age.” During the First World War, the spirit on the home front was fear, and President Wilson …

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