During my exclusive interview with President-elect Barack Obama airing Sunday morning on “This Week” I asked the president-elect to respond to a one of the most popular questions on his own website, www.Change.gov.
“Will you appoint a Special Prosecutor — ideally Patrick Fitzgerald — to independently investigate the gravest crimes of the Bush administration, including torture and warrantless wiretapping?” asked Bob Fertik of New York who runs the Democrats.com website.
Fertik submitted the question to Obama’s “Open for Questions” portion of the site, and later to us when he didn’t receive a response.
During his presidential campaign, Obama left the door open to a special prosecutor, so I asked him to respond to Fertik’s question.
Here was Obama’s answer:
PRESIDENT-ELECT BARACK OBAMA: “We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth. And obviously we’re going to look at past practices. And I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering up.
GEORGE STEPHANOPOULOS: “So no 9/11 Commission with independent seeking of power?”
OBAMA: “Well we have not made any final decisions but my instinct is for us to focus on how do we make sure that moving forward, we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward,” Obama said.
Just nine days later, on January 20, Obama took his oath of office (well there was a Mulligan thrown inon some of the wording) and swore to “preserve, protect and defend the Constitution of the United States“. That Presidential oath of office is found in Section 1 of Article II of the Constitution. In Section 2, where the duties of the President are spelled out, we find the responsibility to “take Care that the Laws be faithfully executed”.
Somehow, Obama has decided that the charge in Section 2 gives him license to choose just which laws are to be faithfully executed. In following up on his pledge to look forward (and not charge high level officials for the egregious torture that resulted in over 100 deaths), Obama overlooks the force of law carried in the UN Convention Against Torture (ratified treaties have the force of law) and its very clear-cut admonition:
No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
Yet, no prosecutions of higher level officials have taken place, and as Marcy Wheeler points out, a key date for expiration of the statute of limitations on destruction of evidence will pass in just a few days.
In addition, Obama is choosing to hide behind the blatantly unconstitutional “Don’t Ask Don’t Tell” legislation prohibiting “out” gay troops from serving in the military. As bmaz so forcefully describes:
The constitutionality of invidious discrimination based on sexual orientation should be argued with the government taking the lead on saying it is NOT constitutional, has no place in our society or government and that the court should so declare any such conduct invidiously discriminatory against a protected class under equal protection, due process and first amendment grounds. The Obama Administration and DOJ should should have the courage and principle to come out and say just that.
Q And one of the things I’d like to ask you — and I think it’s a simple yes or no question too — is do you think that “don’t ask, don’t tell” is unconstitutional?
THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on the Supreme Court. And I’ve got to be careful, as President of the United States, to make sure that when I’m making pronouncements about laws that Congress passed I don’t do so just off the top of my head.
I think that — but here’s what I can say. I think “don’t ask, don’t tell” is wrong. I think it doesn’t serve our national security, which is why I want it overturned. I think that the best way to overturn it is for Congress to act. In theory, we should be able to get 60 votes out of the Senate. The House has already passed it. And I’ve gotten the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to say that they think this policy needs to be overturned — something that’s unprecedented.
How can a person who ran for president partially on the basis of his experience as a Professor of Constitutional Law get it so wrong on two issues that relate so profoundly to the Constitution and to basic human rights? The global prohibition on torture allows no exceptional circumstances, and yet torture by the Bush administration is being swept under the rug as actions that were necessary to “protect the country”. Discharging “out” LGBT troops on the basis of a biological fact no different from race or gender denies them basic rights that any first year law student in Professor Obama’s class would recognize as unconstitutional, but he chooses to concentrate instead on a legislative argument rather than a constitutional argument.
Perhaps it is time to ask President Obama to outline for us what his basic operating principles are, because they clearly are not based on the Constitution, faithful execution of all of our laws,  or even basic human rights.