Home > Legal Issues > The “Top Gun” defense, and Obama’s horrific civil liberties record

The “Top Gun” defense, and Obama’s horrific civil liberties record

For a president who was supposed to be the antidote to George W. Bush’s “imperial presidency,” we have not only seen more of the same with Barack Obama, we have seen extensions.  Obama is pushing the envelope here. 

Not only has he not ended the war in Iraq, he has expanded the war in Afghanistan, begun fighting in Pakistan, kept Guantanamo Bay prison operational, continued the Bush-era practice of extraordinary rendition, maintained the USA PATRIOT Act, and pioneered the use of strip-search body scanners. 

More worryingly, Obama has asserted a new power which moves beyond an “imperial presidency” into the territory of “God.”

The fictitious power to which I’m referring is the targeting killings of U.S. citizens outside of war zones.  While it is within the government’s power under the conventions of war and the Constitution generally to authorize killings, those killings must be done under certain, defined circumstances.  According to the Center for Constitutional Rights:

The authority contemplated by the Obama administration is far broader than what the Constitution and international law allow… Outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury. An extrajudicial killing policy under which names are added to CIA and military “kill lists” through a secret executive process and stay there for months at a time is plainly not limited to imminent threats.

I quote from the CCR because they, along with the ACLU, are suing Barack Obama’s administration over the assertion of the right to murder.  According to a press release:

According to today’s legal complaint, the government has not disclosed the standards it uses for authorizing the premeditated and deliberate killing of U.S. citizens located far from any battlefield. The groups argue that the American people are entitled to know the standards being used for these life and death decisions.

“A program that authorizes killing U.S. citizens, without judicial oversight, due process or disclosed standards is unconstitutional, unlawful and un-American,” said Anthony D. Romero, Executive Director of the ACLU. “We don’t sentence people to prison on the basis of secret criteria, and we certainly shouldn’t sentence them to death that way. It is not enough for the executive branch to say ‘trust us’ – we have seen that backfire in the past and we should learn from those mistakes.”

In procedural terms, the ACLU and CCR filed their case late this summer, and the government responded with a motion to dismiss the case, asserting the “political question doctrine,” by which the courts are precluded from making any decision based on purely political issues.  The reply was issued last Friday, and can be found here.

At this point, however, I would be unsurprised if the government went to the “Top Gun” defense in oral argument, modeled after one of the funniest scenes in the classic movie:

Maverick: We happened to see a MiG-28 do a 4G negative dive.
Charlie: Where did you see this?
Maverick: That’s classified.
Charlie: It’s what?
Maverick: It’s classified.  I could tell you, but then I’d have to kill you.

I’m envisioning something like this:

Government: We assert that we have the right to establish kill lists, which will remain classified.
CCR: Under what constitutional authority?
Government: That will also be classified.
CCR: How will you decide whom to kill?
Government: Classified.
CCR: So you’ll secretly kill people based on secret lists with secret justifications?
Government: I could tell you, but then I’d have to kill you.

High courtroom drama!

Sadly, this is from the president that was elected to be the anti-Bush.  While many of us were justifiably wary of Obama’s profligacy, we thought that at least his civil rights record would be better than his predecessor’s.  Not so, it seems.


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