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To Protect and Defend...

Author: Micah Zenko, Douglas Dillon Fellow
June 11, 2013
Foreign Affairs

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When asked last September if he personally chose which individual terrorist suspects could be targeted with lethal force, President Barack Obama gave a response that would have astounded the founding fathers: "What is absolutely true is that my first job, my most sacred duty, as president and commander in chief, is to keep the American people safe." This is false. As the presidential "Oath or Affirmation" in the Constitution reads: "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

It is troubling that someone who lectured on constitutional law for a dozen years at the University of Chicago Law School would misidentify the president's primary pledge and obligation. To be fair, his predecessor was similarly guilty. George W. Bush told a cheering crowd at the 2004 Republican National Convention: "I believe the most solemn duty of the American president is to protect the American people." This interpretation was supposed to be corrected with the 2008 presidential election; then-Senator Obama had declared during the campaign: "I was a constitutional law professor, which means, unlike the current president, I actually respect the Constitution."

Now in his second term, President Obama insists that his counterterrorism policies differ markedly from Bush's. However, there are far more similarities than differences with regards to: non-battlefield targeted killings (an estimated 50 under Bush, and 387 under Obama); indefinite detention of suspected terrorists (approved by both through executive orders); broad surveillance authorities (as former NSA and CIA director Michael Hayden admitted on Sunday, "NSA is actually empowered to do more things than I was empowered to do under President Bush's special authorization"); and overclassification of government information (largely unchanged). Ari Fleischer, Bush's former spokesperson and now public defender, recently tweeted: "Drone strikes. Wiretaps. Gitmo. O is carrying out Bush's 4th term. Yet he attacked Bush 4 violating Constitution. #hypocrisy."

The essential and enduring feature of both post-9/11 presidents has been their shared contention that their core objective -- and by extension, that of the executive branch -- is to protect U.S. citizens from one particular form of harm: terrorist violence. Both success and failure at achieving this objective have justified the expansion of additional authorities and tools. If there are no terrorist attacks, then all policies in place must remain, but when terrorist plots are revealed or the rare attack occurs, then additional tools and secrecy are mandated. Like a ratchet wrench, it only works in one direction. It does not matter if these presidential powers erode individual civil liberties or the ability of citizens to comprehend or evaluate the activities of the national security state. Again, the executive branch's obligation is less to protect citizens' constitutional rights than it is to protect citizens' lives, but only from terrorists.

The White House's response to the serial NSA revelations last week vividly showcased this mindset. Press secretary Josh Earnest declared: "The top priority of the president of the United States is the national security of the United States and protecting this homeland." The president, meanwhile, defended the status quo by making a classic straw-man argument: "If every step that we're taking to try to prevent a terrorist act is on the front page of the newspapers or on television, then presumably the people who are trying to do us harm are going to be able to get around our preventive measures." Obama also noted that if this information is "just dumped out willy-nilly, it's very hard for us to be effective." (This echoed his straw-man characterization of drone strikes: "There's this perception that we're just sending a whole bunch of strikes willy-nilly.")

Of course, nobody has argued that "every step" of every counterterrorism activity should be made public. Interestingly, the Obama administration makes the reverse argument that every activity it says should remain classified is nobody's business. Moreover, the revelations published in the Guardian and the Washington Post involved the collection of metadata of U.S. citizens' phone records, emails, website visits, and credit card transactions. The American public was never made aware of this monitoring of their personal activities, and when Sen. Ron Wyden asked James Clapper, the director of national intelligence, in March, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Clapper responded: "No, sir." It turns out they have been, for at least the past seven years.

Although Obama has yet to be asked if Clapper will be investigated for apparently lying to Congress under oath, the president further defended the NSA's surveillance programs by claiming, "Not only is Congress fully apprised of it, but what is also true is that the FISA [Foreign Intelligence Surveillance Act] Court has to authorize it." Last week, when Attorney General Eric Holder attempted to make this same argument before a Senate appropriations subcommittee, Sen. Barbara Mikulski stopped him flat:

This "fully briefed" is something that drives us up the wall, because often "fully briefed" means a group of eight leadership. It does not necessarily mean relevant committees.… So "fully-briefed" doesn't mean we know what's going on.

Subsequent statements from senators and congressmen of both parties revealed that most elected representatives were -- like the general public -- unaware of the scope of data that was being collected, and disagreed about its effectiveness at disrupting terrorist plots. Meanwhile, the FISA Court has rejected only 11 of the more than 33,900 surveillance applications made by the federal government since 1979. Therefore, the congressional and judicial oversight of these only just-now-revealed NSA surveillance programs appears to be both confused and sparse. Obama claimed: "On balance, we have established a process and a procedure that the American people should feel comfortable about." Many Americans are not, because they were kept in the dark about what "telephony metadata" was being collected from them, and the processes and procedures are nearly as opaque.

Bush's and Obama's expansive executive branch powers and attendant secrecy are all allegedly in service of protecting the homeland from foreign terrorists. All the justifications provided by former and current government officials for maintaining every NSA program are centered on just one mission: countering terrorism. It is as if the NSA's collection priorities and programs -- detailed in the National Intelligence Priorities Framework that Obama signs every six months -- has the word "TERRORISM" stamped across it. Two months ago, Clapper claimed that cyber was the No. 1 "distinct threat area" facing the United States. However, officials did not mention cyberattacks -- or, for example, listening into Chinese military communications -- when defending the NSA, because public discourse privileges preventing terrorism over any other national security task.

You might notice that you never read on the front page of the Washington Post about an expansive and highly classified program to limit vaccine-preventable deaths, even though 1.5 million children under age 5 die each year. There are no investigative journalists who report from "inside the ultra-secret world" of the sprawling U.S. Agency for International Development. Likewise, you will never hear about a Department of Energy official who blows the whistle on a massive, multiyear effort to expand renewable energies or improve carbon-sequestration technologies. Or, of contractors in Virginia being showered with money for a crash program to answer all outstanding Freedom of Information Act requests. Or, of course, of a plan to reduce the 31,672 annual firearm deaths within the United States.

The president and executive branch are entrusted with secret sweeping authorities -- used with minimum oversight -- only to protect Americans from the minor and statistically insignificant threat of foreign terrorism. During his 2009 inaugural address, Obama claimed: "We reject as false the choice between our safety and our ideals." Given the continuation of the safety-first mindset and sustainment (or expansion) of counterterrorism programs from his predecessor, apparently there was precious little choice to be made.

This article appears in full on CFR.org by permission of its original publisher. It was originally available here.

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