President Barack H. Obama is vandalizing the Constitution’s separation of powers. But the elite legal society comprising the Harvard Law Review is deaf to the Paul Revere-like summons to defend the rule of law. Thereby hangs a tale of moral dereliction.
President Obama is playing secret prosecutor, judge, jury, and executioner to kill any person anywhere on the planet whom he decrees poses an imminent danger to the national security. Predator drones are his preferred instruments of assassination. Thousands have been killed without due process, for example, a 68-year-old grandmother murdered while picking vegetables with her 9-year-old granddaughter, and, the teenage son of Anwar al-Awaki, a United States citizen, killed with his teenage cousin and at least five other civilians on October 14, 2011 while the group was eating dinner at an open-air restaurant in southern Yemen. These killings constitute the war crime of “launching an attack in the knowledge that such attack will cause incidental loss of civilian life, injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct military advantage anticipated.”
President Obama usurped the war power of Congress in initiating conflict with Libya without either a declaration of war or funds appropriated for that purpose and without a claim of self-defense. The usurpation was clear and ominous. James Madison lettered Thomas Jefferson: “The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.” The Libyan war also constituted the crime of aggression under post-World War II international law principles decreed at Nuremberg, i.e., the use of military force against a foreign country without the justification of self-defense.
At Guantanamo Bay, Mr. Obama has imprisoned indefinitely without accusation or trial persons declared to have “substantially supported” al-Qaeda, the Taliban or associated forces engaged in hostilities against the United States or its coalition partners—another profanation of due process. The terms “associated forces” or “coalition partners” are undefined in the National Defense Authorization Act of 2012. The President continues to imprison scores more who are no longer even suspected of aiding enemy combatants.
President Obama chronically flouts his constitutional obligation to take care that the laws be faithfully executed by refusing to prosecute known and notorious cases of torture, serial violations of the Foreign Intelligence Surveillance Act, and obstructions of justice, including the C.I.A.’s destruction of an incriminating interrogation video of a terrorist suspect. The President declined to sanction or rebuke in any respect his Director of National Intelligence, James Clapper, for committing perjury in categorically denying to Senator Ron Wyden (D-Ore.) during a Senate Intelligence Committee hearing that the National Security Agency was collecting data on millions of Americans. In fact, the NSA was secretly collecting telephone metadata pursuant to secret law on every domestic or international communication of every American in the United States, and had been doing so since May 2006.
Additional examples of President Obama’s serious and chronic lawlessness must be foregone as a concession to the shortness of life and of space. Suffice it to say that in imitating or bettering the instruction of his predecessor George W. Bush, President Obama wields precisely the type of unchecked executive power that provoked the American Revolution.
Alarmed by unmistakable earmarks of presidential tyranny, Congressman Walter Jones (R-N.C.), Ralph Nader and I lettered the President of the Harvard Law Review, Mitchell Reich, on January 31, 2012. We urged the Review to sponsor a seminar or otherwise to invite President Obama to an event to explain by what constitutional authority he had taken or refrained from taking various actions, including those enumerated above. We believed that the HLR, which houses an elite society of law students, was morally obligated to hold the highest elected official in the land accountable to his oath to uphold and defend the Constitution. It was altogether fitting for the Law Review to sponsor the constitutional seminar because Mr. Obama had previously served as its President.
Mr. Reich declined to respond. When a reporter inquired about the Jones-Nader-Fein letter, Mr. Reich declared he had no comment.
Ralph Nader and I made the same overture to Mr. Reich’s successor, Conor Tochilin, in December 2012. He ignored the request completely.
In 2013, we repeated our request for a third time to then HLR President Gillian Grossman. She answered with a pro forma declination, a modest improvement on Mr. Tochilin’s insolence. Later in 2013, I inquired of Ms. Grossman whether HLR members might have an interest in meeting a galaxy of seasoned legal experts who were in the forefront of challenges to prevailing orthodoxies of injustice or government lawlessness, including Edgar Cahn, former Harvard Law Professor Arthur Miller, former Attorney General Ramsey Clark, and myself. The group spoke at a Ralph Nader sponsored “Shake’em Up HLS Day” event on October 24, 2013. Ms. Grossman declined the offer.
The Harvard Law Review was confronted three times with a choice between displaying moral courage in confronting President Obama over the greatest constitutional crisis in more than a century on the one hand, and professional ambition on the other hand. The Law Review chose ambition.
That choice demonstrated that intellect devoid of character is worthless, and that Harvard Law School would profit by a course in moral philosophy.
Bruce Fein, HLS Class of 1972, was associate deputy attorney general under President Reagan. He is the author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy, and American Empire Before The Fall. He is currently President of the National Commission on Intelligence and Foreign Wars.