NEW YORK--Shortly after 9/11, President George W. Bush secretly signed two executive orders. Both violated basic constitutional protections as well as U.S. obligations under international treaties, yet both carried the force of law. They still do.
The first order grants the president (and the secretaries of defense and homeland security) the right to declare anyone--including an American citizen--an "unlawful enemy combatant." A person so declared has no redress, no appeal, no ability to challenge that designation. Once a person has been named an enemy combatant, he has no rights. He can be held without charges forever, tortured, you name it. In the second covert executive order, Bush authorized the CIA to target and assassinate said "enemy combatants."
These orders came into play on Nov. 3, 2002, when a CIA-operated Predator drone fired a Hellfire missile at a car containing Qaed Salim Sinan al-Harethi, supposedly al-Qaida's No. 1 man in Yemen at the time. U.S. officials didn't know that an American, Kamal Derwish, was riding along.
"The Bush administration said the killing of an American in this fashion was legal ... this is legal because the president and his lawyers say so--it's not much more complicated than that," CBS News reported at the time.
"I can assure you that no constitutional questions are raised here," said then national security adviser Condoleezza Rice.
Congress tried to clarify matters in the Military Commissions Act of 2006, part of which--the section that eliminated the writ of habeas corpus--was struck down by the U.S. Supreme Court last year. But the rest of the MCA remains, including a passage that defines an enemy combatant as anyone who provides "material support" to the "enemy."
Now that times have supposedly changed, it's time to ask: Why hasn't President Barack Obama abrogated Bush's controversial executive orders? Simply put, no one man ought to claim the right to suspend a person's constitutional rights. Not in America.
But that's not the case. In 2002, Scott Silliman, director of the Center on Law, Ethics and National Security at Duke University asked: "Could you put a Hellfire missile into a car in Washington, D.C., under [the Bush] theory? The answer is yes, you could."
Nothing much has changed. Obama has eliminated the use of the phrase "enemy combatant," but The New York Times reported that the change is merely to "symbolically separate the new administration from Bush detention policies." The words may have changed, but Obama Attorney General Eric Holder's definition of who can be held, said the Times, is "not significantly different from the one used by the Bush administration."
These days, Obama has ramped up the assassination of political opponents of the U.S.-aligned regime in Pakistan, deploying more Predator drone attacks than Bush. But that's just for now. Obama could still personally order a government agency to murder you.
That's not as weird as the fact that you probably don't care enough to do anything.
Ted Rall is the author of To Afghanistan and Back.