Think Freely Media presents Common Sense with Paul Jacob

Seventy years ago, no one stormed Normandy beach to give one man the power to imprison or to execute anyone he or she decides is an enemy of the state.

Freedom cannot survive in a society where the leaders — those wielding the power of the state — are not required to follow the rules. The President of the United States of America is no more above the law than any other citizen. This is fundamental to all that America stands for.

And yet, last weekend, President Obama flagrantly violated a federal statute that he in fact personally signed into law. The statute states quite clearly that the president may not release prisoners held at the Guantanamo Bay brig — Gitmo, for short — without notifying Congress 30 days prior.

There is no good excuse for failing to abide by the law. But the Obama Administration has enthralled the media with a plethora of poor ones.

The Secretary of Defense and folks at the Justice Department signed off on it, we’re told. That’s no check on the president’s power; those folks work for Obama.

But how about, “There wasn’t time”? Try that on the next traffic cop who pulls you over.

They couldn’t tell because Congress might spill the beans. Gotta say that it’s smart to blame Congress. But no.

The president issued a “signing statement” at the time he signed the bill, declaring that this specific 30-day provision was unconstitutional. Wait a second . . . didn’t Mr. Obama take an oath to uphold the Constitution? Then, wouldn’t it be a given that signing a statute into law he knew had an unconstitutional provision violates that oath?

Oh, I guess I’m a stickler.

So, once upon a time, was Sen. Barack Obama, who said in 2007, “While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.”

Mr. Obama added, “I will not use signing statements to nullify or undermine congressional instructions as enacted into law.”

You can take that to the . . . pile.

In effect, Obama’s signing statement on the defense bill in question, H.R. 3304, amounts to a line-item veto, which when passed by Congress years ago was struck down as unconstitutional. It is also a pocket veto, whereby there’s no procedure for both chambers of Congress to ever overturn the stealth signing statement veto.

Back in 2006, the American Bar Association made the exact same charge against President George W. Bush’s use of signing statements. If, like me, you’re no fan of the ABA, consider that the ABA quoted one of my favorite experts on the presidency to make their case. George Washington understood that the president “must approve all the parts of a bill, or reject it in toto.”

Some may dismiss the 30-day legal mandate as no big deal, or as unwise, and thus determine that ignoring it is harmless — even beneficial. They’re wrong. When presidents break the law, it undermines the foundation of the rule of law, a critical building block of civilization.

Moreover, such official lawlessness has hardly been limited to 30-day congressional notification requirements. President Obama and President Bush before him have not only claimed extraordinary executive powers, they’re used them.

How many Fourth Amendment violations have occurred through the NSA programs disclosed by Edward Snowden?

Mr. Obama has ordered the execution of three American citizens by drone strike without even bringing formal charges that they committed a crime. One of those Americans, Anwar Awlaki, was alleged to be a regional commander for al Qaida, but his 16-year old son was killed two weeks later without any apparent reason.

How will we ever know for certain, though? The executions are secret and carried out without any check on the president’s life-and-death decision-making power.

Perhaps, the biggest leap toward such awesome and unrestrained power in the chief executive came from President Bush’s decision to arrest Jose Padilla in a dirty-bomb plot, but to ignore his constitutional right to due process and hold Padilla as an “enemy combatant,” subjecting him to “advanced interrogation techniques” — even though Padilla is an American citizen and was arrested on U.S. soil.

Mr. Bush called Padilla “a bad man.” Yes, but the president’s opinion on one’s goodness or badness is not how judicial matters are meant to be decided in America. After being forced by our courts to charge him or release him, Padilla was finally charged four years later — not for the dirty bomb plot that had made headlines when he was first arrested, but for conspiracy to support overseas terrorism.

Our Founders wanted to prevent a king, a monarchy. But that’s far too close to what we’ve been left with, what with the Constitution now merely serving as a prop to pull out for tourists.

June 8, 2014

This column first appeared at

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