Eight years ago, Senator Barack Obama warned that the powers of the office he sought were being stretched beyond their constitutional limits: “The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all.” The editors of America echoed his concern in “Abuse of Office” (4/28/08).
Mr. Obama campaigned on a promise to reverse the excesses of the war on terror at home and abroad, which in the name of national security trampled on the rights of suspected enemies and U.S. citizens alike. Today, while some of the worst Bush-era abuses have been checked, President Obama evinces little discomfort exercising the executive powers amassed by his predecessor.
Torture. Within days of taking office, President Obama banned the use of “enhanced interrogation techniques,” the Central Intelligence Agency’s euphemism for what amounted to a state-sanctioned program of torture. But whereas Mr. Obama’s break with the Bush administration’s illegal and immoral use of torture was swift and decisive, his commitment to transparency and accountability for these crimes has been lukewarm. It took a year for the Obama justice department to open an investigation into the C.I.A. program, which ended in 2012 without a single criminal charge. Since that time a summary of the Senate Intelligence Committee report on torture has only reinforced in gruesome detail the extent to which intelligence officials misled the White House and Congress about the brutality, efficacy and lawfulness of the agency’s harsh interrogation practices. International law requires that torture allegations be investigated and those responsible be prosecuted. Mr. Obama should appoint a special prosecutor to do so.
Signing statements. President Bush’s sweeping use of signing statements—letters attached to legislation to clarify, challenge or disregard Congressional intent—rightly earned the criticism of then-Senator Obama, who said he would not employ this tactic “as a way of doing an end-run around Congress.” While President Obama has been more sparing than his predecessor in his use of these statements, he, too, has used them to unilaterally reject parts of laws he sees as encroachments on his executive authority. In the face of a willfully obstructionist Congress, the president also made generous use of executive orders and presidential memoranda to achieve his own policy aims. Whatever one thinks of Mr. Obama’s actions on immigration reform or federal gun safety research, it is not a victory for the democratic process when a president sidesteps the legislature.
Domestic spying. President Obama showed little interest in rolling back the reach of the insatiable surveillance state before government contractor Edward Snowden leaked thousands of classified documents that revealed the National Security Agency’s indiscriminate monitoring of U.S. citizens. Even after the 2013 revelations, the Obama administration variously ignored, weakened or offered only grudging support to surveillance reform efforts. The resulting USA Freedom Act of 2015 technically ends the government’s bulk collection of telecommunications metadata and strengthens transparency and civil liberty protections at the notoriously government-friendly Foreign Intelligence Surveillance Court. It is unclear, however, to what extent the reforms will actually curtail mass surveillance or why the public should trust an agency that has consistently misrepresented the extent of its activities, even in Congressional hearings.
Habeas corpus. When the Supreme Court in 2008 granted Guantánamo detainees the right to challenge their detention, Senator Obama applauded the justices for “rejecting a false choice between fighting terrorism and respecting habeas corpus.” Today 89 prisoners remain. To be fair, lawmakers in Congress have obstructed the president’s efforts to close the military prison at every turn. But there have also been self-inflicted wounds. Mr. Obama has defended the use of military commissions, aggressively appealed habeas petitions and acknowledged that there are detainees “who cannot be prosecuted for past crimes…but who nonetheless pose a threat to the security of the United States.” The president’s latest doomed plan to shutter the prison camp, released in February, would therefore relocate the facilities but leave in place a fundamentally flawed system of indefinite detention.
If the executive oversteps of this president are not of the same scale or number as those of his predecessor, neither are they insignificant. In a tragic irony, the limited progress that has been made toward the president’s promises to end America’s wars and close Guantánamo Bay has come in no small part from Mr. Obama’s rapid expansion of a secretive drone war that has kept U.S. boots off the ground and enemy combatants out of our prisons. It is also a program that degrades the office of the presidency and is nothing less than an abuse of power.