Last week a New York Times op-ed by former American President Jimmy Carter questioned “how far [the United States’] violation of human rights has extended” since the 9/11 attacks. While conceding that “the country has made mistakes in the past,” Carter argued that “the widespread abuse of human rights over the last decade has been a dramatic change from the past.” Since 2001 the US President has acquired – and used – the power to authorize the assassination and indefinite detention of American citizens, and to operate without the constraints of the 1978 Foreign Intelligence Surveillance Act (FISA), which required court warrants for wiretapping and other domestic surveillance. Carter also noticed the stealthy progress of “Popular state laws [that] permit detaining individuals because of their appearance, where they worship or with whom they associate.” 

President Bush unquestionably took most of the decisions that led America astray, but President Obama is hardly blameless in these matters. A classic instance of how his administration lost its way is its zeal for ‘targeted killings’ – especially those that take place in military theatres that pose no clear threat to American interests. Emboldened by the killing of Osama bin Laden, the White House has repeatedly trumpeted the success of its strikes against al Qaeda leaders. Unmanned Aerial Vehicles (UAVs), have become the weapon of choice not only in Afghanistan – where President Karzai insisted they be stopped after more than 30 civilian homes were destroyed in drone strikes this year – but also in Pakistan, Somalia and Yemen.

Two months ago the New York Times published a damning account of how obsessed parts of the White House have become with the use of drones to move through a notorious ‘kill list’ of leading terrorists. Among other revelations, the article pointed out that despite a high-minded insistence on limiting strikes to situations with a “near certainty” of zero civilian deaths, the Obama administration has repeatedly shifted its aims, and metrics, to conceal the true cost of the programme. For instance: “Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants … unless there is explicit intelligence posthumously proving them innocent.”

This willingness to manipulate estimates of the effectiveness of military action – reminiscent of the notorious ‘body counts’ of the Vietnam war – prompted President Carter to complain in his op-ed: “We don’t know how many hundreds of innocent civilians have been killed in these attacks, each one approved by the highest authorities in Washington. This would have been unthinkable in previous times.”

Washington’s recent indifference to the deaths of foreign civilians has also come to the notice of Christof Heyns, UN Special Rapporteur on Extrajudicial Killings, Summary or Arbitrary Executions. Noting that “targeted killings take place far from areas where it’s recognised as being an armed conflict” Heyns recently told a conference organised by the American Civil Liberties Union (ACLU) that drone strikes threaten to undermine decades of international law. Heyns then asked: “Are we to accept major changes to the international legal system which has been in existence since world war two and survived nuclear threats?”

The Bush administration was rightly condemned for its willingness to produce self-serving definitions that extended the reach of executive power but, to date, President Obama has faced precious little criticism for his readiness to retain Bush’s inflated executive powers. Nor has Obama been called to account for his willingness to game the system to his advantage. The ACLU estimates that US drone strikes in Pakistan, Yemen and Somalia have killed up to 4,000 people since 2002.  Since President Obama has explicitly assumed moral responsibility for the attacks, he should be far more wary of offering such a potentially valuable hostage to fortune. There is absolutely no guarantee that he will be judged sympathetically for persevering a programme that caused thousands of civilian deaths, against repeated cautions from military and intelligence staff, and the strident objections of foreign leaders.

Candidate Obama was a brilliant contradiction:  a complex intellectual who spoke with clarity, a charismatic legal scholar who didn’t shirk from the necessary condemnation of a morally bankrupt presidency. On many points of law and respect for the constitution, however, the Obama presidency has been a retreat from this high ground. This diminution of expectations is not lost on his rivals. Asked about the President’s aggressive counter-terrorism policies, Michael Hayden, CIA director under President George W Bush, and current adviser to Mitt Romney, told the New York Times that “secrecy has its costs.” Commenting specifically on the use of drones Hayden warned: “This program rests on the personal legitimacy of the president, and that’s not sustainable.”  Hayden added: “I have lived the life of someone taking action on the basis of [The Department of Justice’s (DOJ) Office of Legal Counsel’s] secret memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a D.O.J. safe.”

President Obama would do well to remember this warning as he campaigns for a crucial second term.