Speaking of Obama administration lawlessness, what about NSA data collection and drone strikes on American citizens?

|The Volokh Conspiracy |

It's no surprise that most criticism of Obama administration lawlessness has come from the right—political opponents of a president have more of an incentive to highlight bad things the administration has been doing, and supporters, in turn, tend to play down, ignore or even defend such things.

Back in the 1980s, when I was younger and much more naive, I was astounded that so many conservative Republicans defended the Reagan administration's insane arms-for-hostages deal with Iran. "Iran-contra," as the scandal came to be known, was not just an embarrassing negation of America's stated policy of not negotiating with terrorists, but also represented a clumsy but willful attempt to circumvent a duly enacted law that prohibited providing the Nicaraguan contras with weapons.

Today, I'm hardly shocked by such partisanship. The most common defense of the Obama administration acting through executive order when there is minimal to nonexistent legal authority to do so is that President Obama simply must do so, because Congress is so obstructionist. There is no "Congress won't act, so the president's power is expanded" clause of the Constitution, and I'm willing to bet that almost no one making this argument made a similar argument during any of the last three Republican administrations, nor would they make it in a Bush III, Rubio or Cruz administration if a future Republican president found his policies blocked by Congress.

To the extent that folks on the left have criticized the Obama administration for lawlessness, they have often been barking up the wrong trees. For example, consider the objections to NSA data collection. One can certainly make respectable arguments, as co-blogger Randy Barnett has, that the Fourth Amendment bars such activity. The vast majority of courts that have considered the issue, however, have sided with the government.

This is where the distinction between something being lawless (has disregard for the law) and something being unconstitutional (violates the Constitution according to a particular interpretation) lies. I think, for example that most of the modern administrative state is unconstitutional. But given that 80 years of consistent Supreme Court precedent is against me, it would be foolish for me to argue that Obama is "lawless" in following those precedents. My goal in writing "Lawless" was to identify administration policies and actions that could reasonably be described as being heedless of the law based on mainstream, widely accepted understandings of the law, not things where the administration's actions conflict with my idiosyncratic interpretation of the Constitution. Whatever one thinks of the data collection program, given that judges have overwhelmingly found that it is legal, it can hardly be described as "lawless "- though one is free to argue that the judges are wrong, and it is unconstitutional. One can also justly criticize the administration, as I do, for tolerating James Clapper's lying to Congress about the program.

Some of my libertarian friends, especially the ones who follow Glenn Greenwald religiously, urged me to take on not just the National Security Agency, but drone strikes abroad on American citizens who are alleged to be high-level al-Qaeda officials; in fact, in one instance financial support for my book depended on my promise to do so—before I had even researched the issue (so I lived without the support).

The basic principles the administration has articulated aren't lawless at all to wit: The United States is in a state of war with al-Qaeda; those who join al-Qaeda are therefore in practice enemy soldiers, albeit irregulars; and enemy soldiers abroad can be targeted in wartime, regardless of whether they happen to hold American citizenship, as, for example, many German soldiers in World War II did.

In "Lawless" I criticize some of the administration's specific legal reasoning arguments regarding drone strikes—for example, I disagree that enemy soldiers who are targets of drone strikes are entitled to due process. If they are entitled to due process, the administration's kangaroo procedures don't constitute due process. But the mantra that drone strikes on "American citizens," as such, are inherently unconstitutional and lawless doesn't persuade me, any more than a U.S. airstrike on a German intelligence unit in World War II comprised of German soldiers with American citizenship would have been lawless.

So drone strikes and NSA surveillance are two areas where I find myself (mostly) defending Obama against charges of lawlessness emanating primarily from the far left and from (some) libertarians. I hope to post in the near future about liberal critics of the Obama administration with whom I do agree.