The US Is No Longer the Land of the Free
Assassination of U.S. Citizens
President Obama has claimed the right to order the killing of any citizen considered a terrorist or an abettor of terrorism. Last year, he approved the killing of U.S. citizen Anwar al-Awlaqi and another citizen under this claimed inherent authority. Last month, administration officials affirmed that power, stating that the president can order the assassination of any citizen whom he considers allied with terrorists.
Under the law signed last month, terrorism suspects are to be held by the military; the president also has the authority toindefinitely detain citizens accused of terrorism based on his sole discretion.
The president now decides whether a person will receive a trial in the federal courts or in a military tribunal, lacking basic due process protections. Bush claimed this authority in 2001, and Obama has continued the practice.
The president may now order warrantless surveillance, including a new capability to force companies and organizations to turn over information on citizens' finances, communications and associations.
Bush acquired this sweeping power under the Patriot Act in 2001, and in 2011, Obama extended the power, including searches of everything from business documents to library records. The government can use "national security letters" to demand, without probable cause, that organizations turn over information on citizens - and order them not to reveal the disclosure to the affected party.
The government now routinely uses secret evidence to detain individuals and employs secret evidence in federal and military courts. It also forces the dismissal of cases against the United States by simply filing declarations that the cases would make the government reveal classified information that would harm national security - a claim made in a variety of privacy lawsuits and largely accepted by federal judges without question. Even legal opinions have been classified.
This allows the government to claim secret legal arguments to support secret proceedings using secret evidence. In addition, some cases never make it to court at all. The federal courts routinely deny constitutional challenges to policies and programs under a narrow definition of standing to bring a case.
The world clamoured for prosecutions of those responsible for waterboarding terrorism suspects during the Bush administration, but the Obama administration said in 2009 that it would not allow CIA employees to be investigated or prosecuted for such actions.
When courts in countries such as Spain moved to investigate Bush officials for war crimes, the Obama administration reportedly urged foreign officials not to allow such cases to proceed.
The government has increased its use of the secret Foreign Intelligence Surveillance Court, which has expanded its secret warrants to include individuals deemed to be aiding or abetting hostile foreign governments or organizations. In 2011, Obama renewed these powers, including allowing secret searches of individuals who are not part of an identifiable terrorist group. The administration has asserted the right to ignore congressional limits on such surveillance.
Immunity From Judicial Review
Like the Bush administration, the Obama administration has successfully pushed for immunity for companies that assist in warrantless surveillance of citizens, blocking the ability of citizens to challenge the violation of privacy.
Continual Monitoring of Citizens
The Obama administration has successfully defended its claim that it can use GPS devices to monitor every move of targeted citizens without securing any court order or review. A power described by Justice Anthony Kennedy as "Orwellian."
The government now has the ability to transfer both citizens and noncitizens to another country under a system known as extraordinary rendition, and moving them to countries, such as Syria, Saudi Arabia, Egypt and Pakistan, to torture suspects. The Obama administration says it is not continuing the abuses of this practice under Bush, but it insists on the unfettered right to order such transfers - including the possible transfer of U.S. citizens.
Dishonesty from politicians is nothing new for Americans. The real question is whether we are lying to ourselves when we call this country the land of the free.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.