The drone program operates in secret, with the president keeping a classified “kill list”; its targets become known only after they have been eliminated. By all accounts, drones have wiped scores of senior Qaida operatives off the face of the earth without using a single boot on the ground or a missile or bomb that risks greater collateral damage. But the program has resulted in collateral costs; the drones have killed some civilians (the exact number remains unclear), and protests in Pakistan, in particular, have been virulent.
The use of drones is just about Obama’s only action, however, that Romney hasn’t criticized.
As recently as Oct. 8, the Republican nominee reaffirmed his support for the program—and he told The New York Times last year that he, too, would extend its use to take out U.S. citizens deemed a threat. (Rep. Ron Paul was the only candidate in the GOP primary field who questioned the killing of Awlaki.)
Romney has also advocated a return to harsher interrogation tactics that Obama outlawed, telling a reporter last year that he does not believe “waterboarding”—the technique formerly used by the CIA that involves nearly drowning a suspect—is torture. And he has no desire to end the indefinite detention of suspected terrorists. “Some people have said we ought to close Guantánamo. My view is, we ought to double Guantánamo,” Romney said back in 2007, during his first campaign for president. “And enhanced interrogation techniques have to be used—not torture, but enhanced interrogation techniques, yes.”
The Obama administration has taken the same aggressive reading of the law of war as the Bush White House, arguing that the nation can act globally in self-defense to ward off an attack. A Romney administration would likely stay such a course. This doctrine, such as it is, may also apply to Romney’s pledge to launch a military strike against Iran if his administration believed that Tehran was close to developing a nuclear weapon—a strike that his White House might green-light without congressional sanction. There is recent precedent. Obama angered members of Congress last year by failing to seek authorization under the War Powers Act (passed in the 1970s to check presidential power) in lending U.S. support to the rebellion in Libya. By contrast, Bush sought a congressional resolution before engaging in hostilities in Afghanistan and Iraq.
“I don’t believe at this stage, therefore, if I’m president that we need to have a war-powers approval or special authorization for military force,” Romney said in June, referring to a strike on Iran. “The president has that capacity now.”
DISSING ISSA
The Libyan intervention wasn’t the only area where Obama’s muscular use of executive power bothered Republicans. His administration flat-out ignored a request from Rep. Darrell Issa, the chairman of the House Oversight and Government Reform Committee, for internal e-mails related to the Justice Department’s “Fast and Furious” program, an effort to track the flow of automatic weapons across the Mexican border that went terribly awry.
Critics characterized Issa’s investigation as being politically motivated, but his committee clearly had jurisdiction for the request. The Obama White House invoked executive privilege, asserting that it wasn’t required to reveal internal deliberations about the failure of the program. Conservatives and liberals alike widely panned that parsing of the law. Some even called Obama’s act—there he is again—Nixonian.
“The congressional demand for documents was well within the authority of the committee,” Turley said.
Obama’s White House also seemed to venture into uncharted legal waters with its recess appointment of Richard Cordray to head the new Consumer Financial Protection Bureau. Senate Republicans had stalled Cordray’s nomination, but the administration argued that Obama could install him even though the Senate, technically, remained in pro forma session.
While Republican senators ended up not filing suit over Cordray, the Republican-controlled House did step in when the White House directed the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, another unilateral action that rankled Obama’s critics. The House ended up assuming DOMA’s defense in federal court.
The White House invoked executive privilege, saying it wasn’t required to reveal internal deliberations about “Fast and Furious.”
In a way, the White House’s decision not to defend DOMA paved the way for another aggressive action it took earlier this year, ordering the Immigration and Customs Enforcement agency to cease deporting young illegal immigrants who were brought to the U.S. by their parents. After Congress failed to pass the Dream Act, which would have given these immigrants legal status, the administration said it was exercising “prosecutorial discretion.” But critics claimed that the executive branch was simply refusing to enforce a law in violation of its constitutionally prescribed duties.
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