Nearly four years after Barack Obama first became president, one of the least-appreciated aspects of his presidency has been what you might call its residual Bush-Cheneyism. Although Obama has forbidden the use of torture and other enhanced interrogation techniques against suspected terrorists, he has interpreted his power to defend America’s national security nearly as broadly as did his predecessors in the White House. He has overseen expanded federal domestic surveillance, committed the military overseas with little Congressional consultation, and observes Bush’s pre-emption doctrine when it comes to Iran’s nuclear program. (Never mind whether the bin Laden mission really included a “capture” option, as both U.S. and international law dictated it should.)
This week brought a striking reminder of Obama’s comfort with expansive executive power and secrecy, when a federal judge ruled that the administration doesn’t have to disclose an internal memo that justified the targeted killing-by-drone of Anwar al-Awlaki, an undeniably wicked al Qaeda agitator who also happened to be a U.S. citizen. He was likely the first American specifically condemned to die by a White House memo, but you won’t get to see the reasoning behind it because the White House has resisted requests to see it from the New York Times and the ACLU on national security grounds. In her peculiar ruling on Wednesday, Judge Colleen McMahon granted the administration’s right to secrecy.
But at the same time, she described an “Alice in Wonderland” legal dynamic that stymies challenges to executive branch national security measures–including ones that might violate the Constitution. The administration doesn’t simply refuse to explain its actions, it refuses to explain why it won’t explain. “I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret,” McMahon wrote.
To be fair to Obama, much of that thicket originates from the Bush era, and is the work of other federal judges who have deferred to executive power. But Obama has expended no energy cutting through it, either.