The label of national security exceptionalism fits the Obama administration in two ways: first, although the administration has actively sought to address and improve the protection of human rights and civil rights of racial minorities suffering disparate negative treatment in a variety of contexts, those moves toward rights protection generally do not extend to the realm of counterterrorism abuses, although almost all of those who have suffered from violations of human and civil rights in the post-9/11 counterterrorism context are racial and/or religious minorities. One of the justifications for this exceptionalism is based on the widespread view that national security is an area in which ordinary legal and constitutional constraints do not apply because of the strong deference that ought to be afforded to the president in foreign policy matters. Alongside this type of exceptionalism is the outsized perception of the threat of terrorism by politicians and the public, which makes it difficult for the government to shift away from its exceptionalist footing. The second type of exceptionalism is predicated on the view that the United States plays an exceptional role on the world stage in terms of its responsibility to police global actions by exercising its hard and soft power.
This article addresses several areas of the Obama administration’s national security exceptionalism: non-prosecution of those who endorsed torture of detainees, use of drones for targeted killings of citizens and non-citizens, invocations of the state secrets privilege, and use of immigration authorities to detain and sometimes remove those accused of having a connection with terrorist activity. With regard to each of these policies, the administration’s exceptionalism has been accompanied by a lack of judicial engagement and review of these programs, political enabling by Congress that has allowed the commission of violations of fundamental rights, a lack of public pressure for reforms with regard to most of these policies, and, ultimately, a distorting effect on the rule of law.
Obama's National Security Exceptionalism,
Chi.-Kent L. Rev.
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