The Washington Post finds the very idea that President Obama might close Guantánamo to be “potentially the most dramatic use” of executive power in his second term. Doing so would “ignite a political firestorm” because Republicans would oppose the closure, while Democrats would be split. This is yet one more example of the legal absurdity and moral bankruptcy of current times. Executive power was used to create Guantánamo, but now Congress and The Washington Post oppose using executive power to close Guantánamo.
After 9/11, attorneys working for the executive branch manipulated the law to grant the Bush administration the executive power to create Guantánamo. For example, one of John Yoo’s memos while employed at the Office of Legal Counsel purported to permit interrogations outside the United States based on the legal theory that the president, as commander-in-chief during wartime, was permitted to authorize them. This legal theory – the unitary executive theory – was used to radically expand presidential power after 9/11. Bush relied on these legal memos, and exercised his executive power to create Guantánamo and other black sites, to permit extraordinary rendition and torture. The legal memos that Bush relied on have subsequently been described as legally flawed and containing “profound mistakes.” Because, as students are taught, the US Constitution provides for three branches of government, with checks and balances, and the president cannot make decisions on his own.
The Obama administration understood the legal flaws with the unitary executive theory. So, attorneys working for the Obama administration came up with a new legal theory – when, after 9/11, Congress passed the Authorization for Use of Military Force (AUMF), it thereby authorized the president, as commander-in-chief during wartime, to continue maintain Guantánamo, to force-feed detainees (considered torture by most of the world), and to take other extraordinary actions to be determined because the war on terror continues. Thus, constitutional scholar Obama finds comfort in the theory that the legislative branch of government has granted him the right to do as he pleases in response to the war on terror. The practical result on the ground is the same as that of the unitary executive theory, although the reasoning is different. Under both theories, the president, as commander-in-chief during wartime, can do as he pleases.
Here are three other times when Obama has exerted executive power that The Washington Post does not find “dramatic”:
1. Obama ordered US forces to bomb Syria, a sovereign county, without Congressional authorization, and in violation of international law. That is a risky and dangerous use of executive power, but apparently such a use is OK with The Washington Post.
2. Obama asserts the right to kill any US citizen, without trial, acting as judge, jury and executioner, in violation of the right of due process and other rights in the US Constitution. Asserting the right to kill a US citizen seems like a pretty dramatic use of executive power, but The Washington Post makes no comment on that issue.
3. Obama has expanded the surveillance state, seeking to “sniff it all, know it all, collect it all, process it all, exploit it all, partner it all.” That means all emails, chats, messages, calls etc.
If Obama has the executive power to kill a US citizen, it would seem to be a lesser use of executive power to close an illegal institution like Guantánamo. As commander-in-chief during wartime, the treatment of prisoners and detainees would seem to be under his purview. But, apparently Congress disagrees.
It’s not that Obama is exerting presidential power. It’s how he chooses to exert it that disturbs Congress and The Washington Post. When presidential power is used to extend empire, to spread violence or to bomb sovereign nations, it always seems permissible to Congress and the corporate media. But using presidential power to help people, to close Guantánamo, “dramatically” upsets the controlling interests in Congress and the media.