Why the U.S. Executive Branch Is a Clear and Present Danger to Our Democracy

Continued from previous page

One of the most significant is the  "State Secrets Privilege" which allows the Executive to exclude from any legal proceeding any evidence that chooses to call "state secrets," entirely on its own say-so. Under George Bush this excluded massive evidence of torture and rendition of suspects from judicial review.

Another example is an amendment to the 2012 National Defense Authorization Act, introduced by Senate Carl Levin at the behest of the Executive. Guantanamo detainee lawyer Barry Wingard has  summed it up: "The scariest development in the indefinite detention battle is that under the National Defense Reauthorization Act of 2012 recently signed, you as an American citizen can be detained forever without trial, while the allegations against you go uncontested because you have no right to see them."

The NDAA amendment has been challenged in court by a lawsuit brought by Chris Hedges and others, including Dan Ellsberg and Noam Chomsky. On September 12, 2012, Judge Katherine Forrest ruled in favor of Hedges et al.,  stating that "the due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention—potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity. Courts must safeguard core constitutional rights."

The Obama administration then appealed her ruling, and the issue is currently pending either changes in the law by Congress or a higher court ruling.

Although the NDAA amendment is currently in legal limbo, its meaning is not. The Executive Branch asserts its right to indefinitely imprison any American it chooses without even letting them see the charges against them let defend themselves in court. The Executive seeks to effectively eliminate judicial control of its powers to incarcerate and murder Americans as well as foreigners.

But the most striking example of how the Executive threatens both democracy and an independent judiciary is revealed in the case brought by the ACLU and N.Y. Times  in late 2012 demanding information regarding the administration's legal justification for its kill program, including its murder of 16-year-old Abdul-Rahman Al-Awlaki in Yemen, as explained by Jeremy Scahill. (8)

Federal Judge McMahon wrote that White House secrecy raised "serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws not men." She strongly criticized the Obama administration for refusing to reveal its criteria for its program of secret and lawless murder, saying that doing so would "allow for intelligent discussion of a tactic (like torture before it) remains hotly debated. It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise."

But even this judge, who clearly believed that the Executive was taking actions "incompatible with our Constitution and laws," felt she could not grant the ACLU's request because Congress had given the Executive the power to keep "the reasons for their conclusion a secret."

Conclusion

It is clear that anyone who genuinely cares about America's core values, not to mention its people, has no choice but to oppose the threat to democracy posed by the U.S. Executive Branch. The issue is not simply opposing any particular Executive injustice. It is recognizing that the Executive Branch itself is an antidemocratic, authoritarian institution which does not represent either the interests or values of the American people.

The American people thus owe it neither their moral allegiance nor their tax dollars, unless and until it truly comes to represent them. What this implies for each of will be the subject of the conclusion to this series.