Harvard Law School: Cheerleading for Obama?

President Vladimir Putin has his national television channel Russia Today as his propaganda arm, and President Barack Obama has the voices, platforms, and subparts of the Harvard Law School as his cheerleaders. Here is one example:

On September 16, 2011, the Law School hosted John O. Brennan, then Assistant to the President for Homeland Security and Counterterrorism. Mr. Brennan had withdrawn his name for consideration as Director of Central Intelligence (DCI) for President Obama. He was implicated in the Bush administration’s enhanced interrogation techniques on Al Qaeda suspects, aka torture according to Obama himself and his Attorney General Eric Holder. That inconvenient truth was omitted from Mr. Brennan’s introduction.

Mr. Brennan was later nominated and confirmed as DCI, despite a prolonged filibuster by Senator Rand Paul. The Senator balked over Brennan’s refusal to disavow President Obama’s authority to play prosecutor, judge, jury, and executioner to kill any American citizen he secretly decreed an imminent danger to national security. Obama has employed that power at least four times, including the killing of the teenage son of Anwar al-Awlaki. The Founding Fathers denounced such a frightening combination of power as “the very definition of tyranny.”

As the nation’s premier law school housing the nation’s premier law professors, law review, and students, one would expect to hear voices from its hallowed halls assailing Obama and Brennan for endangering the rule of law.

During the Watergate crisis, the Harvard Law School faculty and graduates eagerly volunteered their talents to defeat the usurpations and lawlessness of then President Richard Nixon, including special prosecutor Archibald Cox.

But instead of courageous criticism of Obama or Brennan, we witness a collective silence about a precedent that will lie around like a loaded weapon ready for use by any Caligula who occupies the White House. Justice Louis D. Brandeis, a shining ornament in the Law School’s firmament, taught in Olmstead v. United States: “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”

The Harvard Law School event for Brennan had all the surprise of a Central Committee meeting of the Communist Party of the Soviet Union. The White House posted it prominently on its website: http://www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an.

Brennan was introduced with effusive praise. He delivered an Orwellian speech without interruption or challenge. He took no questions. And the White House advisor departed amidst a crescendo of applause from a claque-like audience.

Mr. Brennan insisted that the Obama administration’s North Star in fighting terrorism was upholding “the core values that define us as Americans, and that includes adhering to the rule of law.” He knew he was telling an untruth in the manner of the Director of National Intelligence, James Clapper, who untruthfully denied under oath to the Senate Intelligence Committee that the National Security Agency was collecting data on millions of Americans. (In fact, the NSA then and today collects telephone metadata on the entire population without cause to believe any are implicated in terrorism or wrongdoing).

One core American value is due process, which is mocked by President Obama’s extermination of American citizens on his say-so alone. It is also affronted by Obama’s politically inspired imprisonments at Guantanamo Bay of scores of detainees that the Defense Department has cleared for release.

But according to Brennan, these practices are au courant because President Obama says they are; and, whatever the President proclaims, ipso facto, becomes international law. Brennan elaborates that all the world’s a battlefield for the United States, and all the men and women on the planet are proper targets for extermination if the President is informed by the putatively infallible intelligence community that they may be planning evil against the United States. Brennan told his transfixed audience:

“The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to “hot” battlefields like Afghanistan. Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time. And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves… “

Others in the international community—including some of our closest allies and partners—take a different view of the geographic scope of the conflict, limiting it only to the “hot” battlefields. As such, they argue that, outside of these two active theatres, the United States can only act in self-defense against al-Qa’ida when they are planning, engaging in, or threatening an armed attack against U.S. interests if it amounts to an “imminent” threat…

This Administration’s counterterrorism efforts outside of Afghanistan and Iraq are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces. Practically speaking, then, the question turns principally on how you define “imminence.”
And just like a hammer perceives everything to be a nail, counterterrorism officials perceive every danger to be imminent—a variation of former Vice President Dick Cheney’s “One Percent Doctrine.”

Another core American value is the right to privacy—the right to be let alone from government snooping—the most cherished right among civilized peoples. As Mr. Brennan was speaking, the National Security Agency was engaged in the greatest warrantless surveillance in the history of mankind. Among other things, the NSA was then and continues today to collect, retain, and search the telephone metadata of every domestic or international call in which an American is a communicant without a crumb of suspicion of wrongdoing. One federal district court has found the NSA’s dragnet surveillance of the entire American population to be a flagrant violation of the Fourth Amendment. So has the President’s own Privacy and Civil Liberties Oversight Board. Yet Brennan had the audacity to assert: “[W]e have ensured that investigative techniques in the United States are conducted in a manner that is consistent with our laws and subject to the supervision of our courts.”

The NSA’s affront to privacy would never have been revealed to the American people if it were not for a 29-year-old modern-day Paul Revere, Edward Snowden. He literally risked his life to enable the democratic process to operate. The likes of John Brennan and pusillanimous heads of the House and Senate Intelligence Committees would have kept the NSA’s ubiquitous warrantless surveillance of Americans secret forever. Yet Brennan maintained with a straight face that, “Our democratic values also include—and our national security demands—open and transparent government.”

For his bravery and devotion to democracy and transparency, Mr. Snowden has been charged by the Obama administration with violations of the Espionage Act. Indeed, the Obama administration has pursued more Espionage Act cases than had all previous administrations combined. James Risen of The New York Times has assailed the Obama administration as “the greatest threat to press freedom that we have encountered in at least a generation.”

Freedom of the press in furtherance of government transparency is a core American value. Justice Hugo Black taught in the Pentagon Papers litigation: “The press was protected [by the First Amendment] so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

The Constitution entrusts exclusively to Congress the decision whether to initiate war under Article I, section 8, clause 11, because the President is inclined to manufacture excuses for belligerency to aggrandize power and to earn a place in history. Every participant in the constitutional convention and state ratification proceedings agreed with James Madison’s letter to Thomas Jefferson: “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.”

But to Mr. Brennan, the Constitution is subservient to a higher law: namely, the President’s alleged imperative to guarantee “the safety and security of the American people.”

Brennan conspicuously avoids discussing President Obama’s crucifixion of the rule of law on a national security cross by initiating or continuing war against Libya, Iraq, Somalia, Yemen, Pakistan, and Afghanistan without congressional authorization and without the justification of self-defense. In doing so, the President violated another core American value articulated on July 4, 1821 by then Secretary of State John Quincy Adams: we do not “go abroad in search of monsters to destroy.”

We glorify liberty, and reject domination or control of other nations or peoples. We repudiate war except to answer an actual or imminent attack threatening our sovereignty because war implicates us in the killing of innocents (like infants at Hiroshima and Nagasaki); and, a core American value teaches that it is better to risk being the victim of injustice than to risk being complicit in it—the moral distinction between civilization and savagery.

The crown jewel of the Constitution is its separation of powers. President Franklin Roosevelt was sharply rebuffed by the American people over his court-packing plan. Mr. Brennan is guilty of a similar separation of powers outrage. As DCI, he is responsible for the agency’s penetration of the Senate Intelligence Committee’s computers to obstruct oversight of the CIA’s post-9/11 enhanced interrogation techniques in blatant violation of the Constitution’s Speech or Debate Clause. When the C.I.A. was caught red-handed, Mr. Brennan requested the Department of Justice to investigate and prosecute Senate Intelligence Committee staff members

What is truly shocking was the docility or submissiveness of the Law School when confronted with Brennan’s monumental deceits.

Greatness speaks truth to power, and every Harvard Law School student should be instructed in that gospel.

Mr. Fein graduated from Harvard Law School in 1972 with honors, served as associate deputy attorney general under President Reagan, represented the father of Edward Snowden, drafted Senator Rand Paul’s class action complaint against President Obama challenging the NSA’s dragnet surveillance of American citizens, and is author of American Empire Before The Fall and Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy. He currently writes a column and daily blog for The Washington Times. His website is www.brucefeinlaw.com.